Starr & Dell - [2023] FedCFamC2F 1517

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Starr & Dell [2023] FedCFamC2F 1517

File number(s): CAC 1770 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 29 November 2023

Catchwords: FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – Father continues to seek to spend time with his now 10 year old daughter who is significantly resistant to spending time with him – Father has significant criminal history – a number of factual contentions to support Application not established by the Father – Father contends that the Mother effectively subverts his attempts to improve the relationship with his daughter – best interest considerations of the child point clearly to recognition time only between Father and daughter.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Carriel v Lendrum (2015) 53 Fam LR 157

Defrey and Radnor [2021] FamCAFC 67

Mahoney & Dieter [2020] FamCAFC 88

Marsden v Winch (2010) 42 Fam LR 1

Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654

O’Brien & O’Brien [2017] FamCAFC 219

Phillips v Hansford (No.2) (2020) 60 Fam LR 160

Poisat & Poisat (2014) FLC 93-597

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

Shan & Prasad (2020) 61 Fam LR 440

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295

Stern v Colli (2022) 65 Fam LR 548

Swenson & Brantley (No.2) [2020] FamCAFC 205

Walter & Walter [2016] FamCAFC 56

Division: Division 2 Family Law

Number of paragraphs: 73

Date of hearing: 13 October 2023

Place: Canberra

Counsel for the Applicant Ms Isaacson

Solicitor for the Applicant Ms Foster

Counsel for the Respondent Mr Stagg

Solicitor for the Respondent Mr Lee

Independent Children’s Lawyer Ms Cruise
ORDERS

CAC 1770 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR STARR

Applicant

AND:
MS STARR

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

29 NOVEMBER 2023

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Father’s Application filed 12^th August 2021 be dismissed.
2.Final Orders of 6^th December 2019 be discharged.
3.The Mother shall have sole parental responsibility for the child X (born in 2013) (“the child”).
IT IS NOTED that the intention of the Order for sole parental responsibility made at Order 1 above in favour of the Mother is to vest sole parental responsibility for the child in the Mother for all purposes, including the purposes of the Family Law Act 1975 and section 11 of the Australian Passports Act 2005.
4.The child shall live with the Mother.
5.The Mother shall be at liberty to travel with the child within Australia or overseas in the future for holiday or for any future periods that her Husband receives a defence force posting.
6.Pursuant to Order 5 herein, for the purpose of any future posting the Mother shall:
(a)Notify the Father within 14 days of confirmation of such posting; and
(b)Advise the Father of the dates, period and general location of the positing.

7.Within 14 days, the Mother is to provide the Father with a nominated postal address for him to send child-focused letters, cards and/or gifts to the child for special occasions, including the child’s birthday and Christmas Day, to be reasonably checked first by the Mother.
8.The Mother shall notify the Father of any serious medical issues related to the child by writing, as soon as practicable.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

This matter, not for the first time, concerns the Father’s Application for parenting Orders for him to spend time with his daughter, X, who is now aged 10 years (born in 2013). There has been litigation, on and off, between the parties since 2016.
Very briefly stated, the Mother has re-married and has two younger children, B (aged 4) and C (aged almost 3). She lives in the City D region with her Husband who works in the Defence Forces.
The Father resides in City J with his longer-term partner and fiancée, Ms E. The Father has a not insignificant criminal history and has served time in prison. Various records relating to this were admitted in earlier proceedings in December 2018, which were taken from subpoenaed material produced by the Australian Federal Police (Exhibit A).
There have been multiple Reports relating to the parenting issues, which include a Memorandum from Ms F, dated 18^th May 2017 (Exhibit C); a Child Inclusive Memorandum from Ms G, dated 6^th December 2021; and two Reports from Ms H, dated 20^th March and 22^ndSeptember 2023 respectively.
For the reasons that follow, in my view, (a) there has not been a sufficient or significant change in circumstances such as to warrant the matter embarking, not for the first time, upon the draining process of a trial and all that goes with it; (b) significantly, X is quite resistant to spending time with her Father. Her views should be given some (but not overwhelming) weight; and (c) overall, in my view, it is not in X’s best interests for the already protracted litigation to continue in any way. The “recognition contact” proposed by the Mother, supported by Ms H, is in X’s best interests. Otherwise, the Father’s most recent Application should be dismissed, and the Mother’s Orders Sought set out in her Response to the Father’s Application, slightly revised, should be made.
As difficult as I am sure this conclusion is for the Father, as an observation only, from very significant experience and corresponding literature, removing the pressure upon X is likely to have a much more beneficial impact upon the Father-daughter relationship than Court Orders that impose a currently unwanted relationship upon X. It is perhaps rather more likely that X will not only be relieved from not being engaged in litigation (not to mention her Mother in particular) but will appreciate, over time, the sacrificial and more sensitive approach of her Father to opt for letting X no longer be pressured by, and forced to engage with, him. Psychologists, following human nature, not infrequently comment how children, removed from such pressure, can then start to relax and, over time, come to see the bigger and wider picture of family and other things.
Applicant’s Orders Sought
The Father’s Final Orders sought were outlined in his Amended Application for Final Orders filed 29^th September 2023. They were as follows (emphasis in original):
1.All previous Orders in relation to the child [X] born in 2023 be discharged.
2.The parents have equal shared parental responsibility for the child in relation to the issue of the geographic region in which [X] lives.
3.The mother have sole parental responsibility for all other matters concerning [X]’s long term care, welfare and development.
4.[X] live with her mother.
5.[X] spend time with her father as follows:
(a)In November 2024, from after school on the first Friday of the month until 5:00pm on Sunday in [City J];
(b)In December 2024, from 12 noon on Christmas Eve until 12 noon on Boxing Day in [City J];
(c)In January 2024, from after school on the last Friday of the month until 5:00pm on Sunday in [City D];
(d)From February 2024 and during school term time on the last weekend of the month in [City J] from after school on the Friday until 5:00pm on Sunday;
(e)During the term school holidays from the Term 1 holidays in 2024 onwards from after school on the last day of school until 1:00pm on the middle Saturday in [City J];
(f)During the Christmas school holidays in [City J];
i.Commencing from December 2024 and on an alternating basis for a period of 14 nights as agreed and failing agreement from 3 January until 17 January;
ii.Commencing from December 2025 and on an alternating basis for a period of 14 nights as agreed and failing agreement from 12 noon on the Saturday after the last day of the school term until the 15^th day thereafter (noting that this period of time will encompass Christmas Day and New Year’s Day).
6.For any period of time that [X] is to spend in [City J];
(a)The father book and pay for [X]’s flights in the first instance (in consultation with the mother) and handover occur at the respective [City D] or [City J] airports at reasonable times;
(b)Upon the father receiving a receipt for payment, he forward that to the mother who reimbuse the father (into an account of his nomination) for 50 percent of [X]’s flight costs within 72 hours of receipt of the father’s receipt for payment;
(c)If the mother and father cannot agree on reasonable times for [X]’s flights, the parents ensure [X] lands in [City J] by no later than 8pm at the commencement of her time with her father and lands in [City D] at the conclusion of her time by no later than 8:00pm; and
(d)[X] is to fly unaccompanied and the father bear any additional costs associated with that service.
7.For any period of time that [X] spends with her father in [City D], handover occur at the [Suburb K Park] in [City D] at the commencement and conclusion of time.
8.The father place a Facetime call to [X] every Monday and Thursday between 7:00pm and 7:30pm and the mother ensure that [X] has her phone with her at these times and support [X] to both answer the phone call and have the phone call in privacy.
9.In the event that [X] is not in her father’s care on Father’s Day, [X]’s birthday, the father’s birthday, Easter Sunday, Christmas Day and New Year’s Day, the father place a Facetime call to [X] prior to Noon on the relevant day and the mother ensure that has her phone with her on that day is supported to answer the father’s call.
10.The parents be restrained from denigrate each other or the other parent’s family in the presence of [X].
11.The mother and father advise each other as soon as possible by the best available means in the event of the following occurring:
(a)[X] being injured or falling seriously ill;
(b)[X] requiring urgent medical treatment by a doctor or ambulance crew; or
(c)[X] being admitted to hospital.
12.The parents keep each other informed of any changes of particulars of their residential address, landline, mobile phone number and email address within 48 hours of any change.
13.The father be at liberty to obtain all medical records and to consult with [X]’s medical and dental practitioners to obtain any information he may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.
14.The parents will authorise in writing the principal or alike at the school attended by [X] to support both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to and carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copy of these Orders will be sufficient to discharge this Order.
15.The mother be restrained from changing [X]’s residence from the [City D] region without written consent of the father.
Respondent’s Orders Sought
The Mother’s Final Orders sought were contained in her Response to the Father’s original Application for Final Orders filed 18^th August 2021. They were outlined as follows (emphasis in original):
1.That the Mother shall have sole parental responsibility for the child [X] born [in] 2013 (“the child”).
2.IT IS NOTED that the intention of the Order for sole parental responsibility made at Order 1 above in favour of the Mother is to vest sole parental responsibility for the child in the Mother for all purposes, including the purposes of the Family Law Act 1975 and section 11 of the Australian Passports Act 2005.
3.That the child shall live with the Mother.
4.That the Mother shall be at liberty to travel with the child within Australia or overseas in the future for holiday or for any future periods that her Husband receives a military posting.
5.That pursuant to Order 4 herein, for the purpose of any future posting the Mother shall:
5.1.     Notify the Father within 14 days of confirmation of such posting;
5.2.Advise the Father of the dates, period and general location of the positing; and
5.3.Provide an address for the Father to send cards and gifts to the children during the periods of the posting.
6.That the Mother shall notify the Father of any serious medical issues related to the child by writing, as soon as practicable.
7.That the Mother shall facilitate recognition contact, namely facetime/video chat on the following occasions:
7.1.     The Father’s Birthday;
7.2.     The Child’s Birthday;
7.3.     Fathers Day;
7.4.     Christmas Day
8.That in the event of future incarceration of the Father that Order 7 herein is nullified.
Reports of Ms H
From the first Report of Ms H from March 2023, I note the following comments (emphasis in original):
7.   [X] presented as a bright, talkative and engaging child. She was excitable and curious during the first part of her interview, moving around the room exploring different toys and asking many questions about them. She appeared to be very creative in her play and artistically. She settled during the second part of the interview and mostly sat and answered questions and offered information without prompting. At this time she became more serious and solemn.
8.   [X] reported that she was in Year 4 and “really loves” school. She reported that she has good friendships at school and has a “very nice” teacher. She reported that she loves [animals], reading, [the arts and sports]. She reported that she also likes playing with her younger siblings and lounging around. [X] reported that she is learning to play [an instrument] and it was reported that she also attends a tutoring agency.
9.   The mother described [X] as bubbly, funny, generally confident, outgoing and a chatterbox. She reported that she is a child who strives to be the best she can be and is talented in [the arts]. The mother reported no concerns for [X]socially and described her as having a good peer network and as having sustained long friendships. Last year the mother had concerns for [X]’s academic achievement, however reported that she is no longer concerned and thinks that [X]’s school performance has improved due to her experiencing less stress related to these proceedings. The mother reported that [X] was recently presented an Excellence Award at school.
10.    The father described [X] as an “amazing kid” who is caring and loves animals. He reported that he knows she does well at school and likes swimming in her pool. He reported an emotional disconnect with [X] due to the nature of their phone contact and acknowledged that he doesn’t know her the way that he wishes to due to the lack of quality time with her.
…
PROPOSALS OF THE PARTIES
14.   The father is seeking that orders be made for him to spend quality, meaningful time with [X]. He acknowledged that his initial application for orders (made while [X] was residing in the [City J]) are no longer workable. His initial application was for equal shared parental responsibility and for [X] to spend time with him from Wednesday to Friday in week one and Friday to Monday in week two, with additional phone calls and school holiday time.
15.   The mother is seeking that orders be made for sole parental responsibility and for [X] to have “identity only” contact by way of phone/video call once per fortnight. The mother’s initial proposal was for sole parental responsibility with “recognition contact” on the child’s birthday, the father’s birthday, Father’s day and Christmas day, with this recognition contact to permanently cease if the father was ever incarcerated again.
…
28.   The mother alleges there was an incident of physical violence towards her in 2015, in front of [X], where the father dragged her down a hallway by her hair and hit her head into the fridge and held her face down over a sink while screaming at her. She reported that during this incident she was begging for him to stop and thought that he may kill her. The father conceded that an incident occurred. He reported that he had been angry with the mother and dragged her by the arm into the kitchen so he could argue with her away from [X]. He conceded that the mother would have been fearful during this one incident.
…
31. The mother described being concerned that the father has a propensity for violence and she is concerned that this combined with any drug use may expose [X] to impulsive and unpredictable violent behaviour if in his care.
…
Child Safety and Wellbeing
35.   The issue of whether the father’s behaviour poses an ongoing risk to [X] is disputed. The father was incarcerated in 2012/2013 […] for a conviction […]. As such, he missed [X]’s birth and was released when she was […] old. The father reported that he had not done this for [himself], however agreed to help a friend […]. The father reported that he regrets this and should have stayed out of it.
36.   The father was then charged and convicted of three counts of [an offence] in 2018. He was sentenced to an Intensive Correction Order. The mother alleges that at the time of this conviction the father had charges for offences and believes that he was not convicted for all of them due to his co-operation with police. She also believes that the father was [conducting illegal activity] in his home due to information from a third party. She also reported that police had found [illegal substances] in [X]’s room in his home. This does not appear consistent with the AFP information contained in the 2017 proceedings case file. The mother alleges that the father took [X] with him while he was [conducting illegal activity] and there are photographs from AFP surveillance of the father which confirms this[…]. The father has denied this in his filed material and in the previous proceedings. It appears that the father was not convicted of an offence on the dates that the AFP observed him with [X], however there appear to be other charges the father was not convicted of and it is unclear whether these dates are related.
37.   The father reported that his […] charges were a result of wanting to help a friend […]. He alleges that the friend had asked him to [assist] and he agreed, without receiving any benefit to himself. The father reported that he also regrets this choice due to the significant consequences this has had on his relationship with [X].
…
39.   The mother reports that the impact of the father’s criminal behaviour in this matter has had a significant effect on [X]’s wellbeing. She reported that she became aware of the charges after [X] had been told by other children at her school that the father had been arrested. She reported this was embarrassing and difficult for [X]. She further reported that [X] was being told by other children at school that the father is bad person […]. She said [X] has had difficulty processing this. She reported that she has told [X] that the father “did a bad thing, his punishment was jail and now he has served his punishment”.
40.   The father has other criminal history […]. He has a conviction […] when he was around 24/25 years of age where he was working [in hospitality] at a licensed venue; the police records appear to show that, after having an issue with patrons, the father pursued them and become involved in a fight. The father reported that this incident was not as it had been represented and that he had been attacked by 4-5 people and had injured them while fighting them off.
41.   The father also has another police record […] where it was alleged that he [committed a criminal offence]. The father did not concede nor deny this […], and instead provided the context of the situation. He reported that these charges were thrown out of court, however one of the parties civilly sued him and he had to pay a […] settlement in relation in relation to the harm sustained by that person.
…
43.   The mother also alleges that the father has had previous […] charges [interstate]. She alleges that she found paperwork in the father’s home relating to the court case that occurred in relation to the allegations, and she believes that the father was convicted. She alleges that the information referred to the father [committing serious offences]. The father denies these allegations. However, this writer later found in the Child Dispute Conference dated 2017 (from the previous proceedings) that the Family Consultant had recorded:
“24. [Ms Starr] reported that she had been told when [Mr Starr] was [an adolescent] he had [been charged with sexual offences].
25. [Mr Starr] stated regarding the allegations […], “It’s very personal, I’m not denying it; I don’t want to discuss it”.
44.   There was also an allegation that the father sexually assaulted [a relative] when he was 25 years old. The father reported that the allegations were made maliciously, in a circumstance where the paternal grandmother had coerced [a family member] to make the allegations so that the paternal grandmother’s partner could extort [money] from him. He reported that the police and the teacher, to whom the allegations were reported, did not believe the claims and the claims were eventually withdrawn.
45.   The mother alleges that, previously when the father was spending time with [X] supervised by [Ms E], the father threw a toy of [X]’s in anger. The father conceded that this incident occurred, describing that [X] had poked him in the eye with it so he threw it out of reach. He denied reacting angrily and stated that later that day, the dog had chewed it so he replaced it with a new one. [X] described the incident in her interview (without being prompted) and reported that she could remember the father throwing the toy so hard that it made a hole in the wall.
…
47.   The father alleges that [X] told him that on one occasion, [Mr M] had gotten into the bath with [X] and he had been naked except for a rubber duck which he allegedly had on the end of his penis. The father alleges that he has a video recording of [X] disclosing this. The father reported that [Mr M] asked [X] to touch the rubber duck.
…
49.   The father also alleges that [X] had been disciplined with a wooden spoon causing bruises on her legs. He reported that he had video footage of [X] telling him about this.
50.   The mother denies all allegations of any abuse to [X] in her household.
51.   The father reported that he did not do anything about these allegations as he was unsure about how true they were and [X] had said she touched the duck, not his penis. He also said he “didn’t want to rock the boat” as he had been having 2 weeknights and an alternate weekend with [X] and he didn’t want to risk the mother restricting his time.
52.   The mother alleges that there are risks to the child due to the father’s [criminal] affiliations. She alleges that the father was assaulted and threatened with a firearm at a venue that he often took [X] to. The father denies this allegation and says that he had only been physically assaulted and only told the mother so that [X] would not be confronted by his injuries when he picked her up.
Drugs and Alcohol
53.   It is common ground that the father has a history of [illicit drug] use. The father reported that he has not used drugs since the criminal proceedings in 2018 and that prior to this his use had been social, however he reported that through intervention while he was in jail he considered that his drug use may have been a problem. As previously stated, the mother has raised concerns about the father’s behaviour and mental state when he has been using [illicit drugs].
…
55.   The father reported that all except one of his frequent drug testing through his ICO were clean. He conceded that he had used [illicit drugs] on one occasion and this showed up in his test, however he tried to conceal it at the time and told an alternate story where he had been around someone who used it. He reported on one other occasion that he attended for the test, but was unable to provide a sample. The father reported that there were no concerns about his compliance with drug abstinence during the period of the ICO and this appears consistent with […] Corrective Services records (subpoena 3).
56.   The mother alleges that when the father was having unsupervised time with [X] he has turned up to pick her up and the staff at the childcare centre were so concerned about his presentation, appearing as though he was under the influence of a substance, they reported their concerns to the […] child protection authority. It was recorded [in] 2017 in the […] CYPS material “2 Fridays ago, he turned up to pick the child up from daycare, he looked highly agitated, eyes were red, couldn’t make eye contact, shifty, fidgety. He was not slurring his words, but his language was a bit slower. No smell of any substances. Reporter has seen the father several times, his demeanour is quite colourful/varied. He has never been threatening/angry however….However concerns that he is driving under the influence and caring for her for the 2 hours. On Wednesday just passed, he was completely normal, not under the influence.”
57.   The father alleges the mother has also used [illicit drugs] socially. He alleges this was when they were together and that he had been told by a third party that she had used [illicit drugs] as recently as during these proceedings. He reported that he feels that the mother should also have to undergo drug screening if he is being scrutinised for the same issue.
Mental Health
58.   The father reported that he has been experiencing depression and anxiety. The mother denied any formal mental health diagnosis. Both parties describe their mental wellbeing being significantly impacted by the circumstances associated with these proceedings.
…
61.   The report prepared by [Dr O], dated 06/01/2020 at the request of the father’s legal representative prior to his sentencing was reviewed for this assessment. It states:
“Based on the information provided to me and the results of psychometric testing, [Mr Starr] is currently suffering from symptoms consistent with DSM-5 diagnostic criteria for Major Depressive Disorder, and Posttraumatic Stress Disorder. He identified the onset of his Major Depressive Disorder in 2019 following the offence, and the onset of his Post Traumatic Stress Disorder in his late adolescence…”
His symptoms of Major Depressive Disorder were described by [Dr O] as “persistently depressed mood, loss of interest in previously enjoyed activities, and excessive feelings of guilt, worthlessness and hopelessness. [Mr Starr] also reports recurrent thoughts of self-harm and suicide, increasing his risk of harm to self”.
She further reported “at the time of the offences, [Mr Starr]’s Post Traumatic Stress Disorder was characterised by re-experiencing and avoidance symptoms, along with negative emotional states and cognitions. He also reported symptoms including self-blame, a sense of disconnection from others, hypervigilance, sleep disturbance and risk taking behaviours”.
62.   The letter prepared by [Mr P] (Clinical Psychologist), dated 31/03/2020 was also reviewed. It appears that the father was seeing [Mr P] on an ongoing basis for psychotherapy and had had 6 sessions prior to [Mr P] writing the letter. [Mr P] stated:
“In my opinion, [Mr Starr] reports current symptoms of Adjustment Disorder with mixed Anxiety and Depression on a background of PTSD with traits of [a mental condition].”
…
65.   The mother reported that the ongoing litigation has had a profound impact on her wellbeing, stating “it is draining in so many ways”. She described feeling as though she cannot be as present a parent as she wishes to and that impacts flow through to family members who provide support but also are worried by the proceedings.
…
69.   It is of concern that the mother had not previously reported to police, child protection authorities, or sought medical assistance, regarding her allegations about the father physically assaulting [X]. If these allegations are accurate, a failure to act in a timely manner, or with a response consistent with the allegations of harm, queries the mother’s ability to protect her at that time.
70.   It is also of concern that the mother is now raising the issue of the father’s alleged sexual assaults on child family members, however had previously allowed [X] unsupervised time with him, when she said she knew about the allegation from when they lived together.
71.   Similarly, if the father was concerned that [Mr M] had sexually assaulted or groomed [X], and he did not voice his concerns due to fear it would affect his time with her, he was placing his own needs above her safety.
72.   Other than the family violence allegations and sexual assault allegations, the father is conceding a significant portion of the alleged behaviours that could potentially have caused harm to [X]. It is clear that he understands the impact that his criminal behaviour has had on his ability to maintain a relationship with her.
73.   While the father concedes these behaviours and expresses shame and remorse about his behaviour, it appears there has been a pattern of the father providing ‘alternate truths’ or misleading professionals undertaking assessments. With the variation in information that has been provided in this court and from other sources, it is difficult to assess the father’s capacity for insight into the actual harm or potential for harm that his behaviour has caused to [X].
…
75.   It is also possible that the father has not been able to clearly express his understanding due to his propensity to self-blame and feel excessive guilt as identified in his psychological assessments. He referred on numerous occasions throughout his interview that he understood that the Court would have concerns about his behaviour and he understands why he has to demonstrate that he no longer poses a risk to [X]. He presented genuinely emotional while presenting this information.
76.   The father reported that since his criminal proceedings, he has made significant changes in his lifestyle and maintained them, which demonstrates that he is “worthy” of reconnecting with [X]. He specifically reported that he finished his Intensive Corrections Order, has provided 2 clean hair follicle tests, has regularly been attending sessions with 2 psychologists (one for his mental health and the other for support around engaging X), has maintained a good job and has progressed his career in the same company, has had no further police involvement, and has maintained a long term his relationship with his partner.
…
80.   The father described [X] needing have a meaningful relationship with him. He stated “I don’t want her to lose the parts of me that are in her” and went on to describe his understanding that children are made up of a little bit of everyone around them and that he wants her to have that opportunity with him. He believes that [X] needs to spend time with him to experience how much he loves her and to share experiences with him.
81.   The father believes that his proposal is in the best interests of [X] because he believes that the relationship is not progressing due to the limitations of telephone only contact, particularly the nature of the contact and concerns that [X] is not able to properly engage with him due to being in an environment where the mother is present. He also acknowledged that he is open to guidance about shaping his proposal to meet [X]’s needs and he accepts that he will need to progress at [X]’s pace.
82.   If the father’s proposal was successful then the impact on his household may be significant, especially given the geographical distance between [X] and him. He would likely need to travel and source accommodation to lessen the burden of travel on [X], and also, at least initially, engage a professional supervision service. [X] may require additional psychological and emotional support and this would need to be provided by both parents and a professional support such as a psychologist (noting that she is already engaged with a psychologist).
83.   The capacity and / or willingness of the adults to work cooperatively in matters related to the child and to facilitate the relationship of the child’s relationship with the other party is currently very poor. This is evidenced in how they have been unable to communicate and how they have engaged in problem solving in relation to the child. Although this is disputed over time, and at times it appears that both have made a significant effort to facilitate a relationship between the father and the child, this has diminished since the father’s criminal charges in 2018.
…
85.   The mother reported that the relationship has always been strained. She provided examples such as the father refusing to take [X] to her scheduled activities during his time with her and refusing to contribute financially. She also reported that the father has made things difficult for her, such as refusing to allow [X] to travel to [interstate] for her wedding to [Mr M] and only consenting after the mother had spent significant funds and experienced significant stress through the court process. The mother believes that the father’s continuation of court proceedings is the father’s further perpetration of control over her.
THE CHILD AND HER RELATIONSHIPS
[X], aged 9 years
86.   [X] described close relationships with her mother, [Mr M] and her siblings. She described her mum as “perfecto mum”. She described enjoying spending time with her siblings, however sometimes feeling annoyed by them. When talking about her siblings she said fondly “I’m not alone anymore”. She described [Mr M] as being a “really good dad” and said that he gets her to focus on her smile when she is feeling upset. [X] refers to [Mr M] as “dad”.
87.   When asked about the father, [X] was resistant and only answered “meh”. She stated that he calls every Thursday to talk with her, however she finds the phone calls boring and repetitive. She stated that the father talks the whole time and asks the same questions. She reported that on occasions, the father has passed the phone to other people that she doesn’t know and referred to them as “uncle”. (The father denied this).
88.   [X] reported that a significant issue for her is that the father refers to [Mr M] as […] rather than ‘daddy’. She said that this made her sad, angry and confused and that she had cried and yelled at him to stop. She described the father raising this issue on every phone call. All of the parties described this issue. The mother alleges that the father firstly told [X] that he is her father, not [Mr M]; then due to [X]’s distress, he started telling her that they were both her dads. Then due to [X] still be distressed about this issue, and it appearing to consume a significant part of their communication, he progressed to saying that she could refer to [Mr M] as ‘dad’, however he couldn’t also refer to him as ‘dad’ because [Mr M] is not his dad. The father said that he has always maintained that it was just him that could not refer to [Mr M] as ‘dad’.
89.   [X] reported that she was recently told by the father that he was getting her room ready for her to come to their house to visit. She reported that she was confused, “freaked out” and was yelling at the mother because she thought that the mother hadn’t told her that she was going to visit him. She reported that [Ms E] is sometimes in the background of phone calls, and that she had also said that they would like her to come and stay.
90.   [X] reported that sometimes after her phone calls with the father she feels “shaky”. She said that it’s because “he’s really scary”. When asked why, she answered “mum has told me before that dad’s been to prison”. She also said that a boy at school had told her about this prior to them knowing that he had been incarcerated. She said she had felt confused, told the mother, and they had looked it up on the news together. She said that the mother told her “dad was [committing a crime] and abandoned me”. She also said that she had been told that the father had been to jail a couple of times but she didn’t know what for.
91.   [X] then went on to offer other concerns or annoyances that she had with the father. These included that the father had sold her dog without her permission, that when she was a little girl she could remember the father not getting out of bed and she had to make her own breakfast, and that the mother had told her that the father had taken her uncles’ dog hunting and the dog had been killed. She also said that once she had looked under the bed when the father was staying in a hotel in [City D] and saw “a big tub of white dust”. She said she had told the mother about this, however she might not remember.
92.   [X] reported that the father had told her on the phone that he was going to marry [Ms E]. She said that she felt like he was betraying the mother, however when asked about the mother marrying [Mr M], she stated “I’ve got a really good dad now”, referring to [Mr M].
93.   When asked about phone calls and the supervised time she had with the father, she reported that the mother had told her that she “just has to do this stuff”. When asked about how she thinks the father feels about her, she would only answer “meh”.
94.   [X] made some concerning comments about experiencing fear and a sense of responsibility to protect herself and her family. She described activities that she is engaging in so that she will be ready for “whatever comes”. She listed [sports and exercises] to keep as strong as she can, keeping [weapons] close (implying that she would use them as a weapon), sneaking around the house when everyone is asleep to make sure they are alright and that the doors are locked, and having considered that if she was attacked she should lock herself in the kitchen as “it has the most weapons”. She said that she has not talked to the mother or [Ms Q] ([X]’s psychologist) about her thoughts around this and has sought to deceive the mother by telling her she is “just playing” when she is practicing her exercises.
95.   When asked about where her concerns came from, she stated that the mother had told her that when she was a baby the father had hit her a lot and hit the mother. She also said that there had recently been a number of break-ins in her local area, and that [decorations] which had been out the front of their house had been smashed on the road. She also said that someone had broken into their car and stolen their keys, and that the mother and [Mr M] had gotten their locks replaced, installed security cameras on their home, and that a loud ding would go off on [Mr M]’s phone and he would watch the camera. She reported feeling worried if windows were left open or she could see [Mr M] monitoring the cameras.
96.   [X] then went on to describe frightening dreams that she had been having. She reported that “most of my dreams are about [Mr Starr] (the father) cutting something off my dad ([Mr M]), like body parts, or of him hurting mum”. She said that she had had a dream where she had trusted the father when he told her that [Mr M] was a “bad guy” and “we let him murder dad ([Mr M])”. She also described a dream where the father stabbed and killed every member of her family while she watched and he then stabbed and killed her. She reported that sometimes she cannot wake up from her dreams and that she thinks she shakes and twitches in her sleep. She reported that sometimes she shakes when she is awake because she is so worried. She reported that she has told the mother and [Ms Q] about some of her dreams but not all of them, including the one where the father had killed her family.
97.   During [X]’s interview she made some additional concerning comments about her mental wellbeing. She stated “most of the time I look like I’m happy, but I’m not on the inside. I act happy but most of my life I’ve been sad. It’s like there are no lights on and everything is dark and grey. Sometimes I just pretend I’m happy”. She reported that she has not spoken to anyone about these feelings. She said “I don’t want my family to worry at all. I don’t tell them things because I don’t want them to worry about my worrying”. She reported that the only time that she feels happy is when she is [doing her hobbies].
98.   It appears that [X]’s perception of the alleged family violence, abuse and other misdemeanours of the father (whether accurate or not) have been formed through information that she has either been told or otherwise absorbed from exposure in the mother’s home. The extent of [X]’s reported fear is highly concerning.
99.   It does also appear though, that the mother has not always held such strong views about the value of the father’s relationship with [X]. When she was speaking with child protection services in October 2017, they recorded “Child has not disclosed anything of concern about her time with her father. Mother is aware of the good relationship between the child and her father and does not want to stop contact, but wants father to be clean or supervised so she is safe”.
100.[X] wanted the judge/court to know that she does not want to have a relationship with the father. She reported that there was nothing that the father could do differently that would make her change her view on this.
101. [X] reported that she has “already told so many people” her views about what she wants and that “no one listens”. She stated that if orders were made contrary to her wishes she would “be really angry” and “go mental” if the Judge doesn’t listen. She said that she would be “out of control, yell and use my fists which I’ve never done before”.
102. Given [X]’s perception of lack of safety and previous harm that the father has allegedly caused her, her views are appropriate. It does however appear that [X]’s views have been influenced by views of the father that have been imparted to her both intentionally, and also possibly unintentionally, by the mother.
103. The experience of worries, including nightmares and feeling that she needs to be prepared to defend herself and her family from potential serious assaults and harm are highly concerning, unusual, and not developmentally appropriate for a child of her age. Combined with her description of her poor mental wellbeing, it appears that [X]’s mental wellbeing is severely compromised.
104. While it is pleasing to know that [X] is connected to and regularly sees [Ms Q], who appears from the subpoenaed material to be addressing the issues around [X]’s anxieties and mental health presentation, it is also concerning that [X] reported that she has not discussed all of the aforementioned experiences and concerns with her. According to the mother, it appears that [X] has had more sessions with [Ms Q] than what is recorded in the subpoenaed material and further issues may have been raised and addressed than what is contained in the subpoenaed material. If they haven’t however, and [X] has raised these experiences and concerns during this interview with a stranger (rather that a counsellor that she has built a rapport with), consideration should be given to her motivation in sharing these concerns. It is noteworthy that some of the things she had expressed were in conflict with what both parents reported (for example the broken toy incident).
OBSERVATIONS OF INTERACTIONS
105. Formal interactions were not conducted for this assessment due to the significant period since the father has spent time with the child and the availability of the supervised contact records from the father’s four sessions of supervised time in 2022.
106.At the first scheduled visit in April 2022, [X] did not agree to see the father and so the supervised visit did not proceed. The [R Centre] records stated that [X] was “adamant” that she didn’t want to see the father and that she was “scared”, however could not tell the supervisor why this was. It was reported that she questioned the supervisor about why she was being “forced” and why no one was listening to her.
107.At the second visit in June, [X] also reported to the supervision staff that she felt forced to be there and she didn’t want to engage with the father and would become angry at any suggestion. It appears that after some time they persuaded her to agree to allow him to come over to her and spent some time doing quiet activities. The supervisor recorded that they appeared to “talk comfortably” with each other. They recorded that [X] was “actively engaged, smiling and leaning closer to [Mr Starr]”. [X] ended the visit by telling the staff she was ready to leave. The supervisor recorded “While walking out to meet [Ms Starr], [X] was talkative with the supervisors and smiling. [Ms Starr] arrived and approaching [X] her first comment was “oh you look happy”, sounding surprised and in an accusatory manner. [X]’s disposition immediately changed to withdrawn/unhappy.” The other information recorded about this visit described the father as being attuned to, and respectful of, [X]’s needs and providing her with control over the interaction.
108.At the next visit in August 2022, it appears that [X] took some time to warm up, being described as “very abrupt and short in all responses”. The father had brought some […] presents for [X] which appears to help their engagement. The supervisor then recorded that “about an hour into the session…she appeared to be enjoying herself with laughter, initiating games and conversation”. Again it was recorded that the father was attentive to and led by [X]’s cues.
109.The mother raised with the supervisor at this session, and in her interview for this assessment, that [X] had felt forced to hug the father at the last visit and had been put out about receiving gifts, not being sure if she was allowed to accept them.
110.At the conclusion of this session the supervisor recorded “[X] agreed to a hug when asked and initiated this with [Mr Starr]. She was relaxed and appeared to be having fun with laughter, and conversation. When back with her mother, her tone returned to be more subdued and as if she had not had a fun time.”
111.At the final supervised visit in September 2022, the visit was after [X] had been upset and angry about the conversation that she had with the father about calling [Mr M] “dad”. It was recorded that [X] did not want the visit and felt deceived by being previously told that if she didn’t want the visit she could go home. It was recorded that the “[X] was being unresponsive and not allowing [Mr Starr] to interact with her at all, [Mr Starr] remained respectful of this and appeared to genuinely want to understand her reasons for anger towards him”.
112.When asked about her supervised visits with the father, [X] said they were annoying and that she had only enjoyed playing with [Ms S] (the supervisor). She said that she pretended she was having fun with the father, however she was actually scared that he would hit her or yell at her.
EVALUATION
113.The limitations identified to this report are the lack of information from the police, and court records and counselling records pertaining to the father.
114.[X]’s expressed views are that she does not wish to have a relationship of form with the father. These views should be given some weight due to the disruptions that have occurred in the relationship between [X] and the father due to his criminal behaviour. However, they should also be given weight cautiously in consideration of it appearing that [X] is being influenced with the views she has formed of the father.
115.This report has identified that there are potential risks for [X] with the father in relation to alleged family violence and abuse, drug abuse and criminal behaviour. There have certainly been past risks to [X] pertaining to the father’s criminal behaviour and this has in turn severely impacted the relationship between the father and the child.
116.The father has reported a number of positive changes that he has sustained to demonstrate that he has addressed the issues of risk to [X]. If the court can verify that these actions have been taken as the father reports, the risk of future potential harm is minimised. It is however of significant concern that there are outstanding allegations of the father sexually assaulting family members that have not been acknowledged by the father, or adequately assessed in this report due to lack of relevant collateral information. If it is found that these allegations are true, and the father is not able to acknowledge or demonstrate insight and successful engagement with intervention to address these issues, the risks related to this issue should be considered as significant.
117.This report has also identified that there are significant mental health risks to [X] in relation to the effect the dispute is having on her. Due to [X]’s limited communication with the father and from [X]’s own disclosures, it appears that much of the basis for [X]’s fears which impact her mental health are coming from discussions with or exposure to adult information from the mother. Given the mother had also not acknowledged this during the assessment, this remains an ongoing issue of concern.
118.There is no independent material available relating to family violence between the parents. However it is common ground that there has been a previous AVO protecting the mother from the father, although associated charges are disputed. The father does however, have a criminal record in relation to assaults (although not on an intimate partner) where the other parties have sustained significant injuries as a result of the force used by the father. It is of concern that the father appeared to justify the behaviour and minimise his responsibility for the assaults.
119.While there are serious allegations about the father’s assaults on both the mother and [X], these allegations are disputed. With the lack of collateral information and the historical nature of the allegations, it is difficult to ascertain whether the mother’s allegations are correct. If it was found that the mother’s version of events are accurate, it would indicate potential serious risk to [X] in the father’s care.
120.If the father’s version of events are correct, the risk of harm to [X]’s emotional wellbeing in the context of the mother’s allegations and messaging to [X] are significant and should be considered. This issue will be discussed further below.
121.The mother’s allegations that the father’s aggressive and/or violent behaviour is exacerbated by intoxicating substances combined with the impairment of judgement experienced by anyone while under the influence of such substances, poses significant additional risk to the child if the father was to relapse into drug use.
122.Further, children in the care of drug affected parents are at risk of a range of harmful parenting behaviours. For example, poor family functioning, inconsistent parenting (including an inability for a parent to be emotionally attuned to a child) and inadequate supervision. In this case, there appears to have been further risks associated with the child travelling in a car with an intoxicated driver, exposure to drug and gang affiliated criminals and direct exposure to significant quantities of drugs located in the father’s home.
123.The mother is clearly concerned about the risks to [X] due to the father’s criminal involvement, drug use and the other issues of concern that she has alleged around violence and abuse. During the mother’s interview she described these concerns, however also appeared to exaggerate some of her claims (for example that drugs were found in [X]’s bedroom by the AFP) which makes it difficult to assess the risks. The mother may feel that she needs to provide the ‘worst case’ for the father’s behaviour, or it is also possible that over the extensive length of this dispute, the mother has become confused about some of the details.
124.The issue of [X]’s mental wellbeing is of high concern in this matter. [X] is clearly finding it difficult to mentally and emotionally navigate what has been an extensive and long term dispute about her parenting arrangements.
125.The mother’s ability to understand and effectively meet the needs of [X] appears to be varied. While she provides for [X]’s practical day to day needs to a very high level, it appears from [X]’s presentation and reports that she has had difficulties separating the adult issues and her own concerns about the father from [X]. It could be seen that the mother has attempted to influence [X] in relation to her views and feelings about her relationship with the father. As previously indicated, [X]’s interview showed clear indications of this and it appears to have had a profound impact on [X]’s emotional wellbeing.
126.The father’s ability to understand and effectively meet the needs of [X] has also been varied. The father has been able to demonstrate recently in the supervised contact sessions that he can be attuned to and effectively respond to [X]’s needs. It appears that the two separate supervision staff believed that the father had the ability to read and respond appropriately to [X]’s cues in an appropriate way to rebuild the relationship. During this assessment, the father also was able to articulate sound strategies for engaging with her, demonstrate capacity for empathy, and take responsibility for the situation that [X] is in. However, there have also been periods when the father has not considered the impact of his behaviour on [X] which is evidenced in his criminal behaviours.
127.It is common ground that the father has also had difficulties engaging with [X] over the phone. This could be a reflection of him struggling to consistently attune to her, however could also be considered reasonable due to the limitations of the medium, which is the only way he has been able to engage with her.
128.Children of [X]’s age require a safe and secure home environment where their emotional and psychological needs are nurtured. [X] is starting to formulate a more complex sense of self and she is becoming more aware of the complexity of emotions and will be having increased awareness of the emotions of others. In high conflict matters, children in this age group struggle with issues around parental loyalty and may be found to side with one parent as a means of escaping the conflict. In addition to the information that [X] provided about the father previously harming both her and the mother, [X] also provided some additional information that does not appear to be accurate, such as seeing a tub of white powder under a hotel bed and the father breaking a wall by throwing her toy. It is possible that [X] is inventing scary details about things that she is worried or anxious about and these details could seem very real to her. It is also possible that [X] is presenting these incidents as a way for her to support the mother’s case, believing that this may elicit a sense of relief from the conflict for her.
129.As already stated, [X] has been involved in conflict regarding her parenting arrangement for half of her life. Common developmental consequences seen in children living in high conflict situations can include:
•Manifestation of significant mental health difficulties including anxiety and depression.
•Developmental milestones not being achieved as a result of the lack of stability in the familial environment and interjecting conflict.
•Being forced to choose one parent over the other as a means of escaping the ongoing conflict; or alternatively premature removal from both households and living with friends.
•Poor self-esteem as a result of trying to resolve feelings of guilt and disloyalty.
130.If it is the case that the mother has acted in an aligning manner with [X], then the effect of ‘choosing a side’ will have been a protective one for her as it will have provided her with some respite from emotional pressure she may have experienced in the mother’s household if she did attempt to have a positive relationship with the father. While such an approach can provide a temporary relief for a child, if issues of alignment are not addressed then there will be ongoing and lasting consequences for the future social, emotional and psychological development of [X]. For example, if this is the case, she may experience feelings of self-blame, guilt, anxiety and probably remorse for how her actions have impacted on the father and her relationship with the father.
131.If the court were to find that the father does not pose a current risk to [X] and is unlikely to pose a future risk to [X], it appears to be in [X]’s best interests to have the opportunity to meaningfully reconnect with the father in an environment where she can independently form her own views of him. Given [X]’s experiences of anxiety and fear around spending time with the father, this would need to be enacted in a sensitive way, at [X]’s pace, and with the specialised support of a service such as the [T Program] in conjunction with [X]’s psychologist and a supervised contact service.
132.The Court may wish to consider whether the father’s partner would be an appropriate alternative option for supervision of ongoing time with the father. For this option to effectively mitigate the risks, the Court would need to feel assured that she was able to identify and act appropriately should the father’s behaviour resemble any of the aforementioned concerns.
133.If the father were to commence time with [X] and [X] was exposed to future harm in his care, the impact on [X]’s emotional and psychological wellbeing would be significant. [X] would be likely to feel that warranted in her fears and the experience would destabilise [X]’s trust in adults. She would likely experience a trauma response that she is particularly vulnerable to, given her current fears and anxiety.
134.Should the Court consider the father continuing with the telephone calls on a fortnightly basis as per the mother’s proposal, this would mitigate the risks of physical harm to [X] and provide her with the opportunity to connect with the father for identity purposes. The challenge with this however, is that the communication does not appear to meaningful, [X] finds the communication mundane and burdensome and there is the risk that she will disengage or alternatively wish to re-engage without an emotional safety framework established for her.
135.The Court may wish to consider whether the father’s partner would be an appropriate option for supervision of ongoing time with the father. For this option to effectively mitigate the risks, the Court would need to feel assured that she was able to identify and act appropriately should the father’s behaviour resemble any of the aforementioned concerns.
136.This writer views the capacity of the parties to have shared parental responsibility as limited. This is due to the concerns raised about the power dynamics in the parents’ relationship, the limits to the engagement of the father in the child’s day to day life and the ongoing impact of the long term litigation on their ability to communicate and negotiate.
RECOMMENDATIONS
Based on the information gathered in this assessment, the following is recommended:
137.It is recommended that the mother have sole parental responsibility for the child, with the view to seek the father’s views on major decisions for her.
138.It is recommended that [X] live with the mother.
139.Further investigation of the issues of the allegations of sexual assault, family violence and confirmation of the father’s capacity to have sustained the changes he alleges to have made should be undertaken to ascertain the current and future risk to [X]. Additional information which would be of assistance, includes [interstate] police and court records, the father’s counselling records and a further hair strand drug test.
140.If the court finds that the father does not pose a current or future risk to [X], it is recommended that an order is made to provide for support for the father and [X] to recommence spending time together, with the aforementioned supports of the [T Program], [X]’s psychologist and a supervised contact service, with the view to spend time arrangements for one weekend per month initially supervised under the management of the [T Program] and then progressing to unsupervised when [X] is ready. Following this, additional time should be considered for holiday time and special occasions or if the geographical distance reduces.
141.If the court finds that the father does pose a current or future risk to [X], it is recommended that [X] spends no time and has no communication with the father.

From Ms H’s shorter, second Report (an Addendum to the first Report in March 2023), dated 22^nd September 2023, given the specificity of her remarks, it is appropriate that the whole of her Report be set out in full as set out below (emphasis in original):
CONTEXT OF THE CHILD AND FAMILY
1.The purpose of this report is to assist the Court in determining the parenting arrangements for [X] (born 2013, now aged 10 years).
2.This Addendum Family Report was ordered by His Honour Judge Neville on the 07/07/2023 to review additional subpoenaed materials from the Australian Federal Police, [State] Police, the Department of Education, Children and Young People and [U Psychology] and consider the joint letter of instruction provided by the Independent Children’s Lawyer on behalf of the Applicant Father, Respondent Mother and the Independent Children’s Lawyer.
3.As per the letter of instruction, this Addendum Family Report will address three key areas.
Do your recommendations in relation to what, if any, time [X] should spend with the father change. If so, how and why, and if not, why?
4.No further information provided by the subpoenaed material provides definitive information regarding the risks raised in relation to the allegations of sexual assault or family violence. The recommendations remain the same, in that ultimately a determination of the Court in relation to the risks is required.
5.However, if the court finds that the father poses an unacceptable risk to [X], it is recommended that the father spend no time and have no communication with [X].
6.If the court finds that the father does not pose an unacceptable risk to [X], in addition to [X] and the father commencing in a specialised support services as outlined in the recommendations in the initial Family Report, it is recommended that the mother engage in therapeutic counselling to assist her in managing her own emotional responses to be able to support [X] to repair the fracture in her relationship with the father.
Has your assessment of risks that may be posed to [X] in spending time with her father change? If so, how and why, and if not, why?
7.The subpoenaed material provided some minimal information about the allegations of sexual assault by the father on his [relatives]. The first allegation of the mother, as recorded in the initial Family Report, was that she had seen records pertaining to a court case in relation to the father sexually assaulting [relatives] when he was [an adolescent]. The Department for Education, Children and Young People records (subpoena 7) showed that the father had engaged in [sexualised activity] when he was [an adolescent]. The records showed that the victim in the matter “had no concerns regarding her safety and was rather unconcerned about the incident”. However, there is no indication in the report as to the age of the victim, and as a child, she would not have the capacity to protect herself, nor fully understand the dynamic of sexual assault.
8.At the time, the father reported to the investigating child protection officer that both children would “touch each other under the clothing and would touch each other’s private parts”. The father further told them that he “would not force … to touch his private parts”. He also told them that both children would initiate the contact. There is no information pertaining to the father’s [relative]’s account of the events, nor any reference to reports pertaining to the father’s [other relative], as alleged by the mother.
9.The mother also alleged that the father had sexually assaulted [a relative] when he was 25 years old and she was [underage]. The AFP records (subpoena 5) showed that the father’s [relative] had disclosed to a teacher that she had sexual intercourse with the father. The [relative] then withdrew her allegations and denied the initial disclosure. While there were queries noted about the [relative] being known for making false allegations, it is also common for victims of sexual assault to withdraw allegations. The historical nature of the allegations, in addition to the lack of clear information about the investigations further complicates this assessment.
10.It is noteworthy that the father has had no allegations pertaining to sexual offending since the allegation […], however the father has engaged in a number of other offending behaviours since that time, which have continued up until his incarceration in 2018. It appears from the AFP records (subpoena 5) that the father was arrested once in 2021 for breaching his bail curfew conditions.
11.If the court finds that the father does not pose a risk to [X], however the mother believes that the father may pose a risk of sexual, physical or other harm to her, then the most significant risk to X] may be her exposure to this parenting dynamic and the impact on her mental and emotional wellbeing, which was discussed in the previous report.
12.[X] is approaching adolescence. It is worth noting that if [X] is denied the opportunity to have a relationship with the father in the instance that the father does not pose an unacceptable risk to her and he is able to demonstrate that he is able to provide [X] with stability and consistency within in a potential relationship, there may be adverse outcomes for [X] if this relationship is severed. For example, children who have not been able to maintain a relationship with both parents commonly experience issues such as low self-esteem, poor mental health, alcohol or substance abuse issues and problems within their own interpersonal relationships later life.
13.Children who have become aligned with one parent following a separation often find the period of adolescence particularly difficult. One of the primary developmental functions of the adolescent phase is to individuate from the family of origin and develop their own values, morals and individual identity. During the process of individuating, adolescents will generally test boundaries, rebut the authority of their parents and challenge the value system of their family unit.
14.In cases where children have become aligned with one parent, they have often lived with an early childhood experience of identifying themself as being “good”, like the “good” parent they have aligned with, and nothing like the “bad” parent who they have removed themself from. During adolescence, children who experience this alignment with one parent may experience an identification struggle and misinterpret their normal developmental function of individuating from the “good” parent as now identifying with the “bad” parent. Further, once [X] grows older and can critically examine the information provided to her by the mother and compare it with her lived experience of the father, she may reject the mother’s views and form an alliance with the father. It is for these reasons that during the adolescent phase, that young people can be found changing households and living with a parent whom they have had very little contact with.
15.If it is the case that the father does not pose an unacceptable risk to [X], the mother may be either intentionally or unintentionally aligning [X] with her views as a result of her own anxieties around her own beliefs around the father’s potential for harm. If the court makes a determination as such, it would be of benefit for the mother to engage with psychological support to assist her to address this issue.
16.If the court finds that the father does not pose an unacceptable risk, then it is suggested that [X] be provided with opportunities to both reality test her views of the father and be supported to re-establish a relationship with him in a therapeutic and supportive environment. It would not be supportive of [X]’s overall emotional or psychological wellbeing to support or empower [X] to maintain the view that she is unsafe with or disrespected by the father if this is the case.
17.There would be further psychological and emotional impacts on [X] if the court orders that she is not to spend time or have communication with the father in the case that she is safe with him. These include that [X] may feel as though the father has abandoned her, she may learn that it is better to avoid rather than manage situations of conflict and she may continue to manifest unwarranted anxiety around the father.
Has your assessment changed in relation to the emotional or psychological impact on [X] changed if she was ordered to spend time with her father? If so, how and why, and if not, why?
18.The court ultimately needs to make a determination about whether there is current and/or likely future risk to [X] pertaining to the father’s criminal history, the allegations of family violence and the allegations around sexual assault.
19.On review of the [U Psychology] records (subpoena 8), [X] appears to have maintained the view that the father is “not respecting her” in her sessions with her psychologist (subpoena 8). Children of [X]’s age can be quite black and white in their thinking, particularly around moral judgements. When [X] refers to the father “not respecting her” in relation to the issue mentioned in the initial assessment (around the father’s discouragement/resistance of the term “dad” in relation to [Mr M]), it may be developmentally appropriate that she is concrete in this thinking and unable to move past this perceived transgression of the father.
20.If the court orders for [X] to continue to have communication and/or time with the father in the case that it is determined that he does not pose a risk to her, [X] is going to find this challenging. She will likely experience an exacerbation of emotional distress and/or anxiety at the beginning of this process, given the inflexibility in her current views and this process would require support through counselling and co-ordination from a specialised support service, such as the [T Program] which was recommended in the initial Family Report.
21.Further, if the mother genuinely has concerns and continues to have concerns for [X]’s wellbeing in a situation where the mother is required to facilitate [X]’s spending time with the father, this will have a further effect on [X]’s emotional and psychological wellbeing. The mother has been [X]’s primary and consistent attachment figure throughout her childhood and as such [X] will be attuned to the mother’s emotional wellbeing, particularly her stress response and this will have a flow on effect to [X].
22.If the court orders for [X] to continue have communication and/or time with [X] in the case that he poses a risk to her and that risk eventuates into harm for her (psychological, emotional and/or physical harm), the impact on [X]’s psychological and emotional wellbeing will be severe. It will reinforce her anxieties that she has expressed and cause distrust for her in the relationships that she has sought safety, for example her relationship with the mother. Implications of this could manifest by way of increased poor mental health and other trauma impacts and should therefore be considered with significant weight.
Applicant’s written submissions
The Applicant filed 3 pages of pre-hearing written submissions on the Rice v Asplund issue on 9^th October 2023. These submissions were as follows (footnotes omitted; emphasis in original):
The Rice v Asplund principle
1.The law pertaining to the application of the rule in Rice v Asplund is well settled:
"The principles which in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change in an ever-present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some new factor which was not disclosed at the previous hearing which would have been material." [Emphasis added]
Material changes in circumstances relied upon by Father
2.The Father relies, inter alia, on the following material changes in circumstances.
Mother is no longer residing in [Country V]
3.When the matter was last before the Court, one of the prominent features of the case was the uncertainty surrounding what would happen after the Mother and the child had returned from the posting in [Country V], which was intended to be for three years. The enquiry focused on the time and communication between the child and the Father which could take place in the short time between when the Mother and child left for [Country V] and during the time that they were in [Country V].
4.The Court was limited by the fact that where the Mother and child would be residing after that posting in [Country V] had concluded was unknown. This was referred to by His Honour at the hearing during which the final Orders were pronounced as “one major unknown which no one can know.” As such, the Court did not make contact orders between the Father and the child after the posting in [Country V] had concluded, although contact was ordered prior to departure.
5.The Mother and the child have returned from [Country V] and are now residing in [City D].
Father’s arrangements after his period of incarceration
6.The other major unknown which the Court was grappling with when considering whether it could make final orders with respect to time arrangements was the extent of the Father’s sentence, including any period of incarceration, as well as where the Father would be living after any period of incarceration. As it transpired the Father was not incarcerated and did not leave [City J]. He intends to remain in [City J] going forward.
7.It is a material change in circumstance that the two factors which were referred to by His Honour as ‘unknowns’ when the matter was last before the court are now known.
8.The other change in circumstance is that the relationship between the father and child which was once strong has deteriorated in the current regime and given the Mother’s inappropriate influence on the child’s views of the father.
Notation C
9.As can be gleaned from the transcript of the hearing on 6 December 2019, the Court was grappling with having to finalise the proceedings without a ‘crystal ball’. His Honour succinctly summaries the position wherein he finds “So there are two very significant unknowns….when we were last together, it was sort of left on the basis regarding those longer-term issues that when they are clarified one way or the other – and both of them need to be clarified- then the parties should arrange some form of mediation to see if longer-term issues can be resolved. And if those longer-term issues are not able to be resolved, then the parties may come back to Court.” That the parties may come back to Court was repeated by His Honour later in the Reasons.
10.It is not suggested that this Court is bound by the Notation. However, the Notation itself supports the submission that the Court did at the time, and still should, take the view that significant change of circumstances would arise once the two issues identified in (a) and (b) of Notation C were clarified which warrant a revisiting of the final orders.
Second limb of the test
11.When considering the approach the Court should take in considering the Rice & Asplund principle as a preliminary matter, the Full Court has found:
“The primary judge's task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child's best interests.” [emphasis added]
12.Here the circumstances are sufficient to provoke a new inquiry, particularly where the undisputed evidence is that the alternative to a new enquiry is that the child will be denied a meaningful relationship with her biological Father. The current video phone time (which is all that the orders permit) is not working. It has not and will not promote a meaningful relationship between the child and the Father.
13.This is in circumstances where in the Family Report and the Addendum Family Report recommend that, provided that the Court determines the Father does not pose an unacceptable risk, it would be in the best interests of the child to have the opportunity to have a meaningful relationship with the Father, and it would be detrimental to her longer term well-being if she were denied this opportunity. A full hearing is required in order to determine the issue of unacceptable risk.
14.The other matter which also requires a full enquiry is the emotional risk the mother poses to the child in attempting to influence the child’s views of the Father. There is ample evidence in the Family Report and the Supervision Report to suggest that the Mother is engaging in such behaviour and, ‘if the father’s versions of events are correct, the risk of harm to [X]’s emotional wellbeing in the context of the mother’s allegations and messaging to [X] are significant and should be considered’. The Family Report also notes “it appears that much of the basis for [X]’s fears which impact her mental health are coming from discussions with or exposure to adult information from her mother. Given the mother had also not acknowledged this during the assessment, this remains on ongoing issue of concern”.
15.When the rule in Rice & Asplund is considered at a preliminary hearing and if such application to re-open parenting proceedings is resisted (as in this case), then:
"…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstances shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child's welfare than to allow the application to continue".
16.It is conceded that one of the factors to weigh up is the undesirability of further litigation. However, in the context where the alternative is a child being denied the opportunity of a meaningful relationship with her biological Father, and there being an identified emotional risk in the context of the child being aligned with the mother, the factors weigh in favour of reopening.
17.It is conceded that after a full retesting of the evidence at a final hearing, the Court may ultimately find against orders for substantial time. However, the body of evidence in this case supports the Court undertaking that enquiry before closing the door on the relationship.
18.Although the Mother raises a number of allegations against the Father which she presumably says support the Court not revisiting the final orders, with respect to those matters it is submitted: (a) most of the allegations were raised in the previous proceedings, and despite the allegations, the Court made Orders for the child to spend time with the Father, prior to her leaving for [Country V]; (b) the matters are in dispute, and at a preliminary enquiry, the Court is to take the Father’s evidence at its highest.
Oral submissions on behalf of the Applicant

Oral submissions on behalf of the Father were as follows. The Father’s Counsel commenced by broadly outlining the Father’s position that the Orders made at the Hearing of December 2019 were not Final Orders but provisional in nature because: (a) it was unknown where (or when) the Mother and child would reside following their posting in Country V, and (b) it was unknown whether, or for how long, the Father would be incarcerated. She relied on the case of Cobb & Landry[1], in which Judge Brown identified that the ‘provisionality’ aspect of certain final orders should be taken into account when addressing the Rice v Asplund issue.[2]
[1] [2023] FedCFamC2F 847
[2] T 5
In my view, these two matters can and should be dealt with immediately. When the Orders were made in 2019, both parties knew the limited duration of the Mother’s Husband’s posting to Country V because of his duties in the defence forces, and that it was not certain where, upon the cessation of that posting, he would be posted. This is to say that everyone knew of the necessary uncertainty of that posting. It cannot now be used as some reason to contend that there has now been a change in circumstances when those precise circumstances were known when the Orders were made.
The second change of circumstances suffers from exactly the same affliction. This is to say that everyone knew that, when the last set of Orders were made, the Father’s sentence had yet to be pronounced. Everyone knew that this would occur, it was only unknown when and what the sentence would be. Moreover, the sentence would (or could) only be either imprisonment or some other non-custodial sentence. That there would definitely be a sentence was known and inescapable. That the precise details of it were not known then, and they are known now, cannot assist the Father’s argument regarding a change of circumstances.
The Father’s Counsel sought to rely on a third change in circumstances which was not outlined in her submissions. This change was described as the Mother no longer facilitating the child having a relationship with the Father, which involved the Mother taking steps to cause X emotional and psychological harm. It was submitted that the Mother now alleged that the Father posed a far greater risk to X than she did at the Hearing of 2019. The Father’s Counsel relied upon the following statements of the transcript of 6^th December 2019.[3]
[3] T 6 – 8; P 8-9 of the 2019 transcript.
It was submitted that X is still operating under the assumption that her Father is somebody to be feared, which derives from comments made by the Mother to X. Relying on the Family Report writer’s comments, it was contended that this leaves X in a position where she is unable to make her own decisions about time with the Father. Despite this, it was raised that of the four supervised visits that X had with her Father, there were at least two positive occasions which indicated ‘glimpses of a spark of being able to reintegrate [sic: “re-ignite”] the relationship.’ In the Father’s submission, this would require continual time with the Father, as current telephone times are not promoting a ‘meaningful relationship.’[4]
[4] T 9 – 11
The possibility of semi-regular recognition time was opposed by the Father due to the fact that it had not been put to the Family Report writer, and the logistics of such time (supervised or not) were not determined. Despite this, it was submitted that the matter should be listed for Final Hearing without putting X through another series of Family Report interviews, hence without any further Family Report.[5]
[5] T 11 – 14
Again, by way of comment only here: if a further final hearing was ordered, that would be (on best estimates) at least 6 months away, if not very likely much longer into the Court listings for next year. By that time, given how much older X will obviously be by then, it would be essential that there be some yet further Report setting out her views from that time, thereby ensuring that she remained directly involved in the litigation. If this did not happen, either parent at a further final hearing could reasonably protest that there was no updated Report that contained some considered assessment (or re-assessment) of X and her views regarding spending time with the Father. All of this is to say that the proposition put on behalf of the Father of a further final hearing but no updated Report, including no update regarding X’s views, respectfully, is unrealistic, inapposite and would very likely lead to compromising any such hearing in the future.
The Father’s Counsel referred to paragraphs 94 and 95 in the Family Report of March 2023 in which the writer noted X’s experience of fear and sense of responsibility to protect her family, which in the Father’s submission, derived from statements made by the Mother to X about abuse that had occurred when X was a baby.[6]
[6] T 15
Further, in response to the Mother’s written submission that the Father has not shown to the Court that he has dealt with his previous drug use, the Father submitted that he had complied with requests of the ICL to provide hair follicle tests. Both tests showed negative readings between late 2021 until late 2022. In relation to the failed drug test of early 2020, the Father’s Counsel simply stated the Father had come a long way since this period, equating it to another change in circumstance. It was submitted that the Father’s completion of a Community Corrections Order satisfactorily, the fact he has held down a job and had no further police charges, as well as his current steady relationship with his partner supports this. The Father further submitted that he has been engaging with a psychologist, Mr P, who on Affidavit deposed that he has no concerns about risks that the Father may pose to X. Mr P had also deposed that the Father likely had major depressive disorder, and that the diagnosis of PTSD, and a medical condition, have been below the threshold for a number of years. Analogising with the matter of Shaw & Pressard, it was submitted that any doubt as to the opinion of this psychologist need not be considered at the current threshold hearing.[7]
[7] T 16 – 17
Returning to the matter of Cobb & Landry, the Father’s Counsel submitted that Notation C in Orders of December 2019 reminding the Court of the possibility to relist the matter, indicates that the Orders had some ‘provisionality’ element. Further, in response to the Mother and the ICL’s reliance on Trewitt & Brock[8], the Father’s Counsel distinguished the Father’s behaviour in this matter and stated that there was no suggestion that the Father had stepped out of the child’s life in anyway. On the contrary, the Father’s Counsel submitted his deep concern about X’s negative view of him, and that he is trying to be sensitive and engage with X, evidenced by his engagement with a child psychologist to develop tools to do so.[9]
[8] [2021] FedCFamC1A9
[9] T 20 – 23
Respondent’s written submissions
The Respondent filed 4 pages of pre-hearing written submissions on the Rice v Asplund issue on 9^th October 2023. These submissions were as follows (footnotes omitted; emphasis in original):
The Relevant Law – Principals Established in the case of Rice & Asplund
1.The principles or “rule” in the case of Rice & Asplund (1979) 6 FamLR 570 was enunciated by Evatt CJ for the Full Court as follows:
“The principles, which in my view, should apply to such cases are that the court should have regard to any earlier order and to the reasons for and the material upon which it was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation.”
The court should only hear an application to vary an earlier order if satisfied that there:
“is some changed circumstance which would justify such a serious step, some new matter arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material...”
“It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should be best served"
2.In SPS & PLS the full court said at paragraph 82 and 83:
(v) The application of the rule [in Rice & Asplund] is closely connected with the nature of and degree of change sought to the earlier order.
(83) Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
3.In the recent decision of Trewitt & Brock, the appeal division stated at paragraph 29 & 30:
The weight of authority and the terms of s 64B of the Act itself point to the order dismissing the father’s application made by her Honour as not being a parenting order within that section. That being so, the court is not obliged to have regard to the mandatory terms of s 60CC of the Act.
Nonetheless, as the authorities make clear, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. Often that determination will focus on the nature of the change in circumstances, if any, and the detriment to the child of further litigation. Considerations raised by s 60CC of the Act may also, obviously, be relevant.
Application of R&A principles in the present case
4.A Final Hearing occurred in September 2019. Parties were cross-examined and submissions were filed. The Final Orders made on 6 December 2019.
5.The Father filed his Initiating Application on 12 August 2021 seeking "spend time with" orders together with his supporting affidavit. Following release of the Family Reports the Father has filed an Amended Initiating Application. The nature of the amended orders sought for time and parental responsibility remain of similar nature.
6.The Father seems to rely on the fact that the child is (a) now living in Australia (b) he has received an Intensive Corrections Order (ICO) for his criminal matters and (c) he has provided clean urine results, as significant changes in circumstances to vary the current parenting orders. If this is correct, then it is respectfully submitted that grounds (a) and (b) are not significant changes in circumstances and (c) should be treated with caution, for reasons set out at paragraphs 7 and 8 below.
7.When the Final Orders were made in December 2019, the Court was aware that the child had not been living in [City J] for some time and would be living in [Country V] for a defined period. The Court was also aware that the Father had pleaded guilty to his criminal matters and was awaiting sentencing where, importantly, incarceration was a possibility. Indeed, Order 5 of the Final Orders foreshadowed "In the event that the Applicant Father is incarcerated …".
8.As to the Father's negative results for illicit substances during the ICO, the father neglected to disclose that he failed to attend drug testing [in early] 2020, and [in early] 2020 tested positive to [illicit drugs] in circumstances where he had charged with [offences]. In the sentencing remarks, [His Honour] found the Father's explanation that he had been in the presence of others who had been using [illicit drugs] "improbable" because the pathologist advised that the level detected in the Father's system was more likely due to the drug being ingested as the confirmatory result was more than twice the level of the cut-off results (page 15, paragraph 19 of annexure “A” in the affidavit filed by the Mother on 29 September 2023). Additionally, the Father does not provide any evidence of what he has done to address his drug issues and, more importantly, what he will do to prevent future relapse in circumstances where the Mother alleges that the Father has a history of drug abuse. Notwithstanding [the Judge’s] remarks, the Father, concerningly, maintained to the Child Inclusive Conference (CIC) reporter that that "he has not used illicit substances for the "past 7-8 years" and that "trace amounts of [illicit drugs] were detected in one sample, but that he believes this occurred when he consumed a friend's drink which was spiked with [illicit drugs]".
9.The Father did not appeal the Final Orders. Perhaps the Father was relying on Notation C to bring the matter before the Court for parenting arrangements, but if correct, there are problems with this approach. The first problem is that Notation C is not an order. There is no order in the Final Orders that provides for the Father to bring the matter back to the Court if mediation was unsuccessful in relation to parenting arrangements. The second problem is that Notation C states at the end, " If no agreement is reached the matter may be re-listed". It does not eliminate the necessity to consider the principles in Rice & Asplund in any relisted application.
10.The court now has the benefit of both the Family Report and Addendum Report of [Ms H]. Notwithstanding the comprehensiveness of the reports, they do not significantly change the situation from that which existed at the conclusion of 2019 Final Hearing where the court had the benefit not available to the Report writer of hearing direct evidence involving significant allegations regarding issues of Family Violence, drugs and criminal activities of the Father and the risk posed to the child as a result of these activities. The recommendations of [Ms H] is expressed as dependent on any findings of risk to the child. This remains identical to what was considered and decided at the final hearing. If anything, following Isles & Nelissen, the predicative nature of assessment of risk based on historical facts would only lead to an enhanced finding of unacceptability of risk. This is particularly the case where it is abundantly apparent from the Family Reports that the Father continues to justify and/or deflect any person responsibility for his historical short comings as was the case during the 2019 hearings. There is no significant change is this regard.
11.Even if the Court is satisfied that there has been a significant change in circumstances, that is not the end of the matter. The Father must also satisfy the court that it is in the best interest of the child to recommence proceedings and engage in the process of another hearing.
12.The child was approximately three years of age when the proceedings first commenced in 2016 for three years. The child is now ten years of age, and the Father is seeking to embark upon opening another chapter of Court proceedings. As the child is older and has been engaged in the court process through the CIC and a new Family Report for the Father's latest application, she is now more aware of the Court proceedings, which was not a factor in the previous proceedings. The Family Report also notes with concern the possible impact of changing the current arrangements on the Respondent Mother and the child’s relationship with the Mother, such that any change in arrangements is not in the best interest of the child.
13.It is submitted that upon consideration of the principles arising from Rice and Asplund, the Court would appropriately find that the Father has failed to establish significant changes in circumstances to justify re-hearing of the matter and, therefore, it is not in the child's best interest to re-litigate the matter.
Oral submissions on behalf of the Respondent
Summarised, the oral submissions on behalf of the Mother were as follows.
First, the Mother’s Counsel submitted that despite the Orders of December 2019 being consented to, and hence no judgment having been published, a full three-day hearing had occurred in which the evidence of the risk of the Father to the child was tested. These Orders were hence final, and the same application of Rice v Asplund principles therefore apply. The Father had the opportunity to appeal those Orders and did not do so. Boiled down to its most basic, the Mother’s Counsel submitted that, effectively and in reality, the Father was simply seeking to have another opportunity to re-run another final hearing, having had the benefit of having done it once already in 2019.[10]
[10] T 23 – 24
The matters of risk that were before the Court in 2019, it was submitted, remain largely the same today, namely, risk of family violence, drugs, the possibility of abuse, and the Father’s criminal history. The Family Report is, therefore, of relatively little benefit or use, because it outlines recommendations based on whether the Court finds that there is or is not an unacceptable risk. The Report writer did not have the benefit of the 3 days of hearing at first instance and was unaware that such issues of risk had been canvassed before the Court already. It was submitted that the Court did have this benefit, and hence the evidence canvassed at trial in 2019 cannot, and should not, be ignored. It was submitted that there has been a change since the Final Orders, yet not a change significant enough to warrant the reopening of the matter.[11]
[11] T 24 – 25
It was submitted that what has not changed is the propensity of the Father to deny allegations made, and then, when shown evidence of the substance of such allegations, deflecting and justifying what had occurred. This was demonstrated in his most recent positive drug test, admitted in early 2020. It was stated that he had informed the Family Report writer that he had not used drugs in seven or eight years, yet tested positive to illicit drugs on this date. The Father had then stated that he was ‘around people who were using’, and ultimately conceded in these proceedings that he had ‘done something he should not have done.’ It was submitted that the Father’s credit, therefore, remains firmly in issue, as it did at the Final Hearing.[12]
[12] T 25
The Father’s submission that the Mother was now poisoning the mind of the child, constituting a change in circumstances, was rejected. The Mother relied upon the Family Report, specifically the following pars (39 and 90):[13]
The mother reports that the impact of the father’s criminal behaviour in this matter has had a significant effect on [X]’s wellbeing. She reported that she became aware of the charges –
“She” being [X] –
after [X] had been told by other children at her school that her father had been arrested. She reported this was embarrassing and difficult for [X]. She further reported that [X] was being told by other children that her father is a bad person who sold poison. She had [X] had had difficulty processing this. She reported that she has told [X] that the father did a bad thing and his punishment was jail, and now he has served his punishment.
…
[X] reported that sometimes after her phone calls with the father, she feels shaky. She said that that is because he is really scary. When asked why, she answered, “Mum has told me before that dad has been in prison”. She also said that a boy at school had told her about this prior to her knowing that he had been incarcerated. She said she had felt confused, told her mother, and they had looked it up in the news together. She said that her mother had told her, “Dad was [committing a crime] and abandoned me”. She also said that she had told her [that] her father had been left in jail a couple of times, but she did not know for what.
[13] T 26
The Mother’s Counsel submitted that it was clear that the child had become aware of her Father’s criminal history and past behaviours through students at her school, and that her Mother had simply attempted to explain that her Father had done a bad thing and was imprisoned for it. This was simply a statement of fact. The Father’s past behaviours are a direct cause for why the child does not want to have a relationship with him.[14] Put another way: “facts” do not, without more, constitute any “poisoning” of the parenting well.
[14] T 26 – 27

The Mother’s Counsel also highlighted a deficit in the Family Report, in that it failed to discuss the role of the Mother’s partner as X’s Father-figure since she was two years old. It was submitted that this must be factored into the consideration of the biological Father’s position in X’s family dynamic.[15]
[15] T 27
With respect to the Notation in Orders of December 2019, it was submitted that this was simply to remind the Court of the reality of the situation at the time, and any suggestion of it making the Orders ‘provisional’ in nature was rejected by Counsel. In the Mother’s submission, the benefits to the child in reopening the proceedings were unexplained in the Father’s material, other than being objectively theoretical and ignoring the possibility of causing further negative impact on the child.[16]
[16] T 28
The Court sought to understand the Mother’s position on “recognition contact.” Counsel submitted that even recognition time, and even the thought of it, would likely cause the child distress. She has expressed a view that she does not want to spend any time with the Father, and hence the benefit to X in engaging in recognition time would be minimal, if non-existent at all. It was submitted that the particular psychological effects experienced by X, noted in the Family Report, which seem to be directly related to the Father, demonstrated this.[17]
[17] T 29
ICL’s written submissions
The Independent Children’s Lawyer filed 3 pages of pre-hearing written submissions on the Rice v Asplund issue on 5^th October 2023. These submissions were as follows (footnotes omitted; emphasis in original):
1.The Applicant in this matter is the Father. The Father on 12 August 2021 filed an Initiating Application seeking to vary parenting Orders that were made on a final basis on 6 December 2019. The Father has subsequently filed an Amended Initiating Application on 29 September 2023.
2.In filing the Initiating Application, the Father must have been aware that he would need to address the rule Rice v Asplund (1979) FLC 90-725 at 78,905:
“… It 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, to quote Barber J., 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.”
3.The Mother seeks that the rule in Rice & Asplund be determined on a preliminary basis.
4.At the time of final orders being made, it was known that the child [X] would be living in [Country V] for a period of approximately three years with her Mother and step-Father, it could not be confirmed where the family would reside after the [Country V] posting. At the time of the making of the Orders the Father was awaiting sentencing in relation to drug-related criminal charges. It is submitted that the Orders made on 6 December 2019, contemplated both the situation of the Father serving a term of imprisonment or the Father serving any time in the community.
5.To the extent the Father seeks to rely on Notation C to the Orders, the Independent Children’s Lawyer submits that all the Notation provides for is for the matter to be re-listed which has occurred. It does not and cannot have the power to overcome the rule in Rice v Asplund.
6.In relation to the rule in Rice and Asplund, the Court must consider the important decision of Warrick J in SPS & PLS (2008) FLC 93-363 specifically paragraphs 48 and 81. As noted in these paragraphs irrespective of when the rule is applied, it is a manifestation of the best interests principle and when determined on a preliminary basis it is determined on the merits.
7.As the Court is aware there are a number of authorities that make clear that when considering the threshold question the Court must consider whether a re-opening of the matter would be in the child’s best interests. This involves weighing the nature of any likely change to the Orders against the potential detriment to the child of litigation.
8.The Father’s Amended Initiating Application seeks final orders that:-
a.The parents have equal shared parental responsibility in relation to the issue of “the geographic region in which [X] lives.”
b.The Father seeks spend time with Orders that on their face seek that [X] go from spending no time with her Father, to overnight time commencing in January 2024 in [City D], and then from February 2024 the overnight time occur in [City J]. The Father also seeks from the Term 1 school holidays in 2024 half of school holidays.
9.The Father’s Amended Initiating Application seeks interim orders that vary vastly to the final Orders he seeks. The interim orders sought by the Father have overnight time commencing in August 2024. The Father’s supporting affidavit provides no evidence that [X]’s psychologist would be prepared to facilitate any meeting between [X] and her Father, in fact the evidence would suggest otherwise, or whether [R Centre] would be able or willing to facilitate the time proposed by the Father.
10.The Independent Children’s Lawyer is conscious that if the Father is not successful that it may mean that there is no meaningful relationship between him and [X], at best the relationship may continue to be maintained via phone calls for identity purposes only. The reality of the circumstances in this case is that [X] has always lived with her Mother who is her primary carer and [Mr M], who for all purposes is [X]’s Father figure.
11.The Independent Children’s Lawyer has considered the Family Report and Addendum Family Report by [Ms H]. The Independent Children’s Lawyer has paid particular attention to paragraphs 124 to 134 of the Family Report dated 20 March 2023 and paragraphs 18 to 22 of the Addendum Family Report dated 22 September 2023 that evaluate the possible risks to [X] in relation to possible outcomes in relation to spend time with Orders.
12.In balancing all the above, the Independent Children’s Lawyer submits the Father’s application should be dismissed on the basis that it is not in [X]’s best interests for there to be ongoing litigation given: -
a.[X] has been involved in a high conflict parenting dispute most of her life.
b.[X] has now had to participate in Family Report interviews and meetings with the Independent Children’s Lawyer.
c.[X] displays anxiety and fear around spending time with her Father and remains resistant to spending anytime with her Father.
d.Taking the Father’s case at its highest the Father is unlikely to succeed in obtaining the final Orders sought by him at a final hearing.
13.If the Father is successful in overcoming the test in Rice & Asplund, the Independent Children’s Lawyer submits that the matter should be set down for Final Hearing and estimates the matter to take 3 days.
Oral submissions on behalf of the ICL
Summarised, the ICL’s submissions were as follows.
In the ICL’s view, if the Court was to find that the principle in Rice v Asplund was met, there is not much more that the Court could do to ensure that time between X and the Father actually occurs. Much of what would have to be done for a Final Hearing had already been done for the hearing on this occasion. Since the Father’s filling of his Initiating Application, the matter now has a comprehensive Family Report, further subpoenas and an Addendum to that Report, and time has been attempted by the parties with X and the Father. Despite this time being done in a child-focused manner and with professional supervisors, X has had to engage in counselling to address some of her concerns. To the Father’s credit, the ICL submitted that he too appears to have done what he could by engaging with child-focused psychologists.[18]
[18] T 31
Further, it was submitted that, relying on pars. 7 and 114 of the comprehensive Family Report, X’s views were very clear, and that her wishes should be given weight by the Court, notwithstanding her age. The ICL highlighted X’s comments at par. 101 of the Family Report;
She stated that if orders were made contrary to her wishes, she would be really angry and go mental if the judge doesn’t listen. She said she would be out of control, yell and use my fists, which I have never done before.
The ICL then referred the Court to par. 96 of the Family Report, where the writer had detailed X’s nightmares and feeling that she needs to be prepared to defend herself and family from assaults and harm. The ICL stated that the Report writer was of the view that X’s mental wellbeing is severely compromised. The ICL submitted that there is no element to or aspect of further litigation which would possibly be in X’s best interests. It was suggested that it might even be powerful for X to know that her views have been taken on board and respected by the Father. The ICL offered the possibility that the Father send her letters, cards and gifts, which would only require tweaking of Orders. These could be opened and read by the Mother, and of course would need to be child-focused and positive. This might allow X to change the narrative that she currently holds of her Father.[19]
[19] T 33
With respect to the possibility of recognition time, the ICL submitted that the Court would need to be satisfied that the Mother was likely to be able to encourage and facilitate that happening, as it would likely be unsuccessful without some willingness, determination, and acceptance on the Mother’s part. Alternatively, it was submitted that if the ICL explained the Court’s decision to permit recognition time, X may be able to understand.[20]
[20] T 34
Outline of principle
I note the following from a select number of the many Full Court decisions that deal with the principle first articulated by the Full Court in Rice & Asplund.[21]
[21] Rice & Asplund (1979) FLC ¶90-725.
Firstly, and simply by way of reference only, I note Warnick J’s important and regularly cited comments in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[22] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set out all of them from this judgment, save for his Honour’s comments at [48] and [81], which are as follows:[23]
[22] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[23] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[48] In my view, reflection on the rule shows that:
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)“Shorthand” statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
[81] …in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In 2008 in Miller v Harrington, the Full Court (Warnick, Boland & Murphy JJ) discussed further the principle and application of Rice & Asplund.[24] Among other things, the Court there said, at [72] (emphasis added):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[24] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and then at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest. …
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[25]
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.
[25] Marsden v Winch (2010) 42 Fam LR 1.
Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[26] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[26] Poisat & Poisat (2014) FLC 93-597.
Recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[27] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[27] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to 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.”
More recently, in Walter & Walter, the Full Court (May, Ainslie-Wallace & Murphy JJ) dealt with an appeal in relation to a so-called Rice & Asplund matter.[28] In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.
[28] Walter & Walter [2016] FamCAFC 56.
First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reason as well as those of Murphy J):
[51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
[52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
[53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that Y had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
[54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
[55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
[56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
[57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour. His Honour’s findings clearly accept the parties’ position that Y’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.

In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86]:
[83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
[84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
[85] In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[29]
[29] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.
[86] In my view his Honour made no error as asserted on behalf of the mother.
Then, after referring at a little length to Warnick J’s decision in SPS & PLS, at [110] – [116], Murphy J continued (internal citations omitted; emphasis added):
[110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
[111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
[112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
[113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3)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.
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
[114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
[115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
[116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
More recently again, in Swenson & Brantley (No.2) [2020] FamCAFC 205, the Full Court said (Aldridge J; Austin & Ainslie-Wallace JJ agreeing) said, at [19]:
I consider any differences between the two phrases as semantic and not substantial. As the authorities make clear, the essential point in the application of the rule in Rice and Asplund is the balancing of the new circumstances against the undesirability of further litigation involving the child. The nature of that exercise will depend very much upon the nature of the changes relied upon. Obviously enough, if there are no changes or if the changes are insignificant or unsubstantial, there will be little to justify reconsideration of the earlier orders.
At [22], the Court said further:
These authorities make clear that a change in circumstances is not itself the answer to the question as to whether the earlier parenting orders should be reconsidered, but that those new matters, in all of the circumstances, must be sufficient to justify or to provide for such a hearing.
The Full Court in Mahoney & Dieter said, at [49] (emphasis added):[30]
… we should emphasise that the magnitude of the variation of the parenting orders sought to be achieved in the fresh proceedings, necessarily informs the nature of change of circumstances sufficient to justify that re-litigation. Here, the mother was seeking a complete reversal of the child’s living arrangements, rather than merely some minor tinkering or slender change to the New Zealand orders. Therefore, the nature of the change in circumstances needed to be of sufficient gravity to warrant the wholesale re-litigation of the child’s living arrangements. On no view did the mother’s claims come close to demonstrating a sufficient change. Taking her case at its highest, it had no reasonable likelihood of success.
[30] Mahoney & Dieter [2020] FamCAFC 88. Such matters were originally canvassed by Warnick J in SPS & PLS (2008) 217 FLR 164 especially at [48].
Perhaps most recently, in Stern v Colli, at [35], the Full Court said (emphasis in original):[31]
[35] In Defrey & Radnor [2021] FamCAFC 67after considering what was said in SPS and PLS (2008) 39 Fam LR 295 at [81] and [84], Miller & Harrington (2008) 39 Fam LR 295 at [105] and Marsden v Winch at [58] the Full Court summarised the law concerning Rice and Asplund as follows:
[19] In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
]20] It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s.69ZQ(1)(a) of the Family Law Act(Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
[21] The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s.60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s.60CC(3)(1) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
[22] Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
[31] Stern v Colli (2022) 65 Fam LR 548. See also Shan v Prasad (2021) 61 Fam LR 440 at [41].
Consideration and disposition
There are three bases upon which the Father seeks to re-agitate parenting Orders regarding his daughter, X. I have already commented on the first two grounds, namely (a) the Mother (and X) no longer living in Country V, and (b) the Father’s situation post sentencing. Summarised, both of these matters were known by the parties (and the Court) at the time the Orders in 2019 were made. Only some basic details were unknown – rather like life itself – namely where the Mother and X would be living, and the nature and duration of the Father’s sentence. Both individually and collectively, they do not constitute “new” compelling or relevantly changed circumstances precisely because they were precisely known at the time of the 2019 Orders. Only very limited detail about each of them was not known at the time of the final Orders.
In addition to what was said earlier in these reasons regarding these matters, the Court may take notice of the fact that the Mother’s Husband is a member of the defence forces. As such, the Court may take judicial notice of the fact that the number of places to which the Mother’s spouse might be posted upon return from Country V was/is rather limited. In my view, little turns on this in any event. To be terribly repetitive, neither of the two bases mentioned are new or significant changes in circumstances. They were generally known in 2019 when the Orders were made at that time. They do not, and in my view, cannot, constitute a relevant or significant change in circumstances that would warrant the litigation to continue, and significantly, to continue to embroil X in the conflict between her parents. Certainly, they cannot, and do not, outweigh the best interests considerations that must take centre-stage (so to speak) to protect X from the ongoing litigation that has embroiled her parents, and in turn that has embroiled her, since 2016.
A further issue ventilated by the Father is Notation C to the 2019 Orders. As noted by the Mother and the ICL in submissions, and somewhat sotto voce by the Father, a “Notation” to Orders, by definition, remains only a “notation;” it is not, by definition, an “Order.” As such, it cannot, and does not, bind either the Court or the parties. Further, the Notation only (and could only) provide for the opportunity for the parties to come back to Court. The Notation cannot, and does not, absolve the Court (or the parties) from satisfying the test or principle set out in Rice & Asplund. The matter has now come back before the Court. Therefore, in any event, there is no more work for the Notation to do. It is not, and cannot be, a further “ground” to bolster the Father’s attempt to relevantly satisfy the principle in Rice & Asplund.
Having regard to the latest iteration of the principle in Rice & Asplund set out above by the Full Court in Stern v Colli, I note the following.
First, the views of X, which are significantly adverse to spending time with the Father, should be given some (but not conclusive or decisive) weight.
Secondly, the comments by the Mother (her Affidavit at pars.48-55 – which were not challenged) about the Father’s contact with the child’s psychologist at U Psychology, however well-intentioned, (a) showed a certain desperation and lack of insight on the Father’s part, and (b) added needless pressure to X and equally to the Mother. Psychological support for the child is important, if not essential. It should not, and must not, be another avenue for the Father to explore. He risks pushing X further away in his – partly unsurprising and understandable – almost desperate attempts to keep the Father/daughter relationship afloat.
To speak generally again, relationships with pre-teenagers like X (and with teenagers even more so) can be very delicate things that require arduous but very gentle restraint and equally crucial, prudential judgment. Restraint and good or sound prudential judgment have not been highlights of the Father’s quite obviously anguished attempts to salvage his relationship with X. Pushing young people, as with many other members of the human family, often only results in an equal and opposite reaction – a basic law of physics and of human relationships. Such seems to be clearly the case here.
Factually, the clear flaws in the Father’s case in relation to his first two grounds (not living in Country V, and his sentencing and/or post-sentencing life and circumstances), together with the views of X and the Father’s unfortunate inquiries of the child’s psychologist, make it almost impossible for the Father’s to succeed. The matters that follow, which overlap those already considered, and crucially the Court’s consideration of what is in the best interests of X, make it inevitable that it must fail.
Thirdly, the comments by His Honour in the Father’s previous matter are both of interest and of significant concern. I will not set out in detail various comments by his Honour, save to record particular, important paragraphs: [5] – [12] regarding the “facts” in relation to the drug offences; [16], [19] and [28] of what His Honour referred to as “subjective features”. In [19], his Honour stated: “In my opinion, the only rational explanation is that you have not been entirely honest about your drug use.”
His Honour’s “consideration” of penalty and related matters, led to state (at [34]) that he found the Father’s explanation regarding certain things he stated to psychologist, Dr O, to be “quite implausible.” And at [37], His Honour said that he had “no doubt that you were aware of the nature and amount of the drugs you were guarding.” The “street value” of the drugs “guarded” by the Father were set out in the judgment. The figures were significant. His Honour then set out concerns and other matters relating to the Father’s mental health, at [39] – [47], which resulted in the Court accepting the Father having PTSD and a depressive condition. His Honour also stated, at [48], that the offences for which the Father had been charged called for “terms of imprisonment.” This said, the sentencing Judge said that he considered the Father to have “reasonable prospects for rehabilitation.”
Accepting that the comments were made in sentencing the Father for his crimes in 2020, they are nonetheless matters of significance and concern, not only because of what his Honour said (notably about the Court’s disbelief of some of the Father’s evidence and comments on his credibility more generally) but also because, quite problematically, the Father and his legal advisors did not provide this judgment to the Court. It was, and remains, a matter both of interest and concern regarding the Application before this Court. The Father should have provided the judgment of the Supreme Court to this Court in relation to this Application. It was not explained why he did not do so.
Fourthly, although set out earlier in these reasons, the comments by Ms H in her Reports in relation to X’s “mental health” are almost, by themselves, more than sufficient to warrant the Father’s Application to be dismissed. I note, in particular, the comments of Ms H at par.124 of her first Report. There she stated: “The issue of [X’s] mental wellbeing is of high concern in this matter. X is clearly finding it difficult to mentally and emotionally navigate what has been an extensive and long term dispute about her parenting arrangements.” As Counsel for the Mother stated in the course of oral submissions, X has been the subject of litigation since she was 3 years old; she is now 10 years old. In my view, 7 years of litigation, however intermittent or not, is more than enough for a life-time, especially for someone still as relatively young as X is at the moment. The litigation has to stop. It is in no one’s interests, least of all X’s, to continue to be subjected to ongoing litigation, even more so litigation that necessarily will stretch quite a way into the future.
The comments of Ms H only confirm this view of the Court. For example, in a similar but more amplified manner, Ms H stated in her “specific answers” Report in September 2023, at pars.19 and 22:
19.On review of the [U Psychology] records (subpoena 8), [X] appears to have maintained the view that the father is “not respecting her” in her sessions with her psychologist (subpoena 8). Children of [X]’s age can be quite black and white in their thinking, particularly around moral judgements. When [X] refers to the father “not respecting her” in relation to the issue mentioned in the initial assessment (around the father’s discouragement/resistance of the term “dad” in relation to [Mr M]), it may be developmentally appropriate that she is concrete in this thinking and unable to move past this perceived transgression of the father.
…
22.If the court orders for [X] to continue have communication and/or time with [X] in the case that he poses a risk to her and that risk eventuates into harm for her (psychological, emotional and/or physical harm), the impact on [X]’s psychological and emotional wellbeing will be severe. It will reinforce her anxieties that she has expressed and cause distrust for her in the relationships that she has sought safety, for example her relationship with the mother. Implications of this could manifest by way of increased poor mental health and other trauma impacts and should therefore be considered with significant weight.
These paragraphs are of particular concern.
I note and repeat the following from the Full Court’s recent judgment in Stern v Colli (at [35]) where the Court said (repeating comments from the earlier Full Court decision in Defrey and Radner at [21] and [22]) (emphasis in original):[32]
[21] The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s.60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the Court…
[22] … The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
[32] Defrey and Radnor [2021] FamCAFC 67.

Having regard to the outlines of principle over many years regarding the principle or rule in Rice & Asplund set out earlier in these reasons, but with particular emphasis upon the comments by the Full Court in Stern v Colli, I have determined as matters of fact (perhaps with some principle) the factual matters relied upon by the Father to establish a relevant or material change in circumstances. I have determined, for the reasons given, that that burden has not relevantly been established. To the degree that there is any change in circumstances here since the 2019 Orders (which were entered into following a full trial), it does not reach, by a considerable degree, the requisite level that would warrant the litigation to be prolonged.
Secondly, for the reasons given, in my firm view, it would not be in X’s best interests for the litigation to continue. Reasonably regularly, and since the age of 3 years old, she has been subjected to the distress and disruption to her life (and the lives of her family, her Mother in particular) that inevitably flows from litigation. As already noted a number of times, X is now 10 years old. The risks to X’s mental well-being, in my view, must take precedence over all else. In addition to what has been set out above, it cannot be, and is not, in X’s best interests for the litigation to continue. There is no justification for it to do so. The Father’s strong, indeed intense, desire to have a relationship with his daughter, is not, of itself and without more, sufficient to continue the unrelenting pressure on X, especially in the face of the concerns expressed by Ms H, and in the face of X’s clear resistance. It is time for the Father to yield his earnest desire to what is determined by the Court to be in X’s best interests. Hostilities must cease. Over time, one earnestly hopes that X recognises (and ultimately responds to) (a) the sacrifice made by her Father to stop pressing her (and everyone else), and (b) that she has been listened to by him, and by the Court. In time, absent the hitherto regular if not almost incessant pressure to spend time with the Father, everyone (including the Father) might be surprised that X will wake one day and say that she wants to spend time with her Father. That is ever so much better than being forced, against her will, to do so, however that might be for the Father.
In addition to what has already been set out in these reasons, I accept and adopt the submissions of the Mother and the ICL. For these reasons, other than the Father being able to send X cards and the like as suggested by the ICL (and reasonably checked by the Mother), the Father’s Application must be dismissed and the Orders Sought by the Mother in her Response to the Father’s Application, slightly tweaked, should be made. In my clear view, they are in X’s best interests.

I certify that the preceding seventy three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 29 November 2023

File number(s):	CAC 1770 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	29 November 2023
Catchwords:	FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – Father continues to seek to spend time with his now 10 year old daughter who is significantly resistant to spending time with him – Father has significant criminal history – a number of factual contentions to support Application not established by the Father – Father contends that the Mother effectively subverts his attempts to improve the relationship with his daughter – best interest considerations of the child point clearly to recognition time only between Father and daughter.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Carriel v Lendrum (2015) 53 Fam LR 157 Defrey and Radnor [2021] FamCAFC 67 Mahoney & Dieter [2020] FamCAFC 88 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 O’Brien & O’Brien [2017] FamCAFC 219 Phillips v Hansford (No.2) (2020) 60 Fam LR 160 Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725 Shan & Prasad (2020) 61 Fam LR 440 SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295 Stern v Colli (2022) 65 Fam LR 548 Swenson & Brantley (No.2) [2020] FamCAFC 205 Walter & Walter [2016] FamCAFC 56
Division:	Division 2 Family Law
Number of paragraphs:	73
Date of hearing:	13 October 2023
Place:	Canberra
Counsel for the Applicant	Ms Isaacson
Solicitor for the Applicant	Ms Foster
Counsel for the Respondent	Mr Stagg
Solicitor for the Respondent	Mr Lee
Independent Children’s Lawyer	Ms Cruise

CAC 1770 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR STARR Applicant
AND:	MS STARR Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	29 NOVEMBER 2023