Swanson & Swanson
[2022] FedCFamC2F 1705
Federal Circuit and Family Court of Australia
(DIVISION 2)
Swanson & Swanson [2022] FedCFamC2F 1705
File number(s): NCC 819 of 2022 Judgment of: JUDGE KEARNEY Date of judgment: 13 December 2022 Catchwords: FAMILY LAW – parenting - threshold – where final parenting orders for children aged 13, 10 and 6 were made in the absence of a party who was incarcerated at the time for multiple family violence offences – where no contact with children for over four years - to determine if new parenting application be dismissed summarily relying on principle espoused in Rice & Asplund – where a significant change in circumstances is found but a lack of insight and contrition for past family violence and the impact on children – not in best interests of children to re-open proceedings – application dismissed with final orders from 2018 confirmed Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZN
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09, 10.13
Cases cited: Barbey & Tuttle (2013) FLC 93-534
Carriel & Lendrum [2015] FamCAFC 43
Chetti & Bhavalakar [2022] FedCFamC2F 194
Clifford & Mountford [2006] FMCAfam 450
Defrey & Radnor [2021] FamCAFC 67
Gingham v Gingham [2013] FamCA 727
King & Finneran [2001] FamCA 344
Malak & Malak (2016) FLC 93-718
Marsden & Winch [2009] FamCAFC 152
Rice & Asplund [1978] FamCA 84
Richardson & Colombo [2021] FedCFamC1A 35
SPS & PLS [2008] FamCAFC 16
Stern & Colli [2022] FedCFamC1A 95
Thomas & Hogan [2013] FCCA 1108
Walter & Walter [2016] FamCAFC 56
Division: Division 2 Family Law Number of paragraphs: 129 Date of hearing: 24 November 2022 Place: Newcastle Solicitor for the Applicant: Mr Lindeman, Lindeman Lawyers Counsel for the Respondent: Mr Liedermann Solicitor for the Respondent: Kenneth Harrison Solicitor & Attorney ORDERS
NCC 819 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SWANSON
Applicant
AND: MS SWANSON
Respondent
order made by:
JUDGE KEARNEY
DATE OF ORDER:
13 December 2022
THE COURT ORDERS THAT:
1.The final orders made 5 September 2018 are confirmed.
2.All outstanding applications are dismissed.
3.In the event that a party wishes to make an application for costs, then by 4.00pm on Tuesday 10 January 2023 such party is to file and serve:
(a)an application in a proceeding;
(b)an affidavit in support; and
(c)a financial statement.
THE COURT NOTES THAT:
A.Should a party comply with Order 3, THEN the Court will make orders in chambers setting the application down for hearing before Judge Kearney as well as directions in support of such hearing.
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 Swanson & Swanson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
Over four years ago final parenting orders were made in circumstances where the father was incarcerated and did not appear. As a result of those orders, there are three children who have lived with the mother and had no contact or communication with the father. The father now seeks to re-open the parenting proceedings because he is back in the community and he wishes to spend time with the children. What should I do?
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth) between the Applicant, MR SWANSON (‘the father’) and the Respondent, MS SWANSON (‘the mother’).
Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth). Similarly, unless otherwise specified, any reference to ‘the Rules’ or a subordinate legislative provision shall be a reference to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and where possible there will be an avoidance of the use of gendered pronouns.
PRECIS
There are three children who are the subject of the dispute namely:-
(a)X (‘X’) who is 13 years old;
(b)Y (‘Y’) who is 10 years old, and
(c)Z (‘Z’) who is six (6) years old.
(collectively referred to as ‘the children’).
In March 2022, the father commenced proceedings which sought relief, including for an ex parte Commonwealth Information Order to obtain the location of the mother in order to effect service of his material upon her. In the time between now and then, the father has better particularised his parenting relief such that he proposes that the children remain living with the mother but that they be re-introduced to him via family therapy. The mother opposed the father’s parenting application.
By the time of the hearing, in summary, the issues to be determined by the Court were:
(a)whether the father’s application to commence parenting proceedings should be dismissed in reliance on the principle espoused in the decision of Rice & Asplund [1978] FamCA 84 (‘Rice & Asplund’); and
(b)whether any costs order should be made.
It was common ground between the parties that if the mother was unsuccessful in her application to dismiss the father’s substantive application, then the next step should be the family participating in a child impact report pursuant to s 62G.
On 5 September 2018, with only the mother and Independent Children’s Lawyer present, final orders were made (‘the final orders’) on an undefended basis and provided for –
(a)the children to live with the mother;
(b)the mother to have sole parental responsibility for the children; and
(c)the children to spend no time with the father.
Taking a broad-brush approach to his case, the father’s most attractive contentions were that –
(a)a significant change in circumstance had occurred because he was now out of gaol and could practically spend time with the children when at the time of the final orders, this option was not available to the Court, irrespective of whether he had appeared or not; and
(b)the children’s exposure to the proceedings has been extremely limited including neither their views or needs being forensically explored at the time of the final orders and now it was in their best interests that this occur because –
(i)the views of X and Y would carry some weight given their ages and the prospect that they are likely to recall and articulate what living with the father was like; and
(ii)despite being unlikely to have any working memory of his father, Z (on the mother’s evidence) is asking about his ‘Dad’ and it is worth exploring whether this means that a father-son relationship should be supported.
For the reasons which follow, I will:
(a)not permit the re-opening of the parenting proceedings;
(b)dismiss the parenting aspect of any applications, and
(c)accommodate any costs applications that may be filed as a consequence of this decision.
In order to determine these issues, it is important that I traverse the applicable law.
THE APPLICABLE LAW
The mother contends that the father’s application should be dismissed now because it does not meet the principle set out in the Full Court decision in Rice & Asplund which reflects a legal principle upon which the Court has relied when considering applications to re-open a parenting case which has already been determined on a final basis.
Although not formally prosecuted before me –
(a)An alternative available to the mother, was the application of r 10.09(1)(c) or (d) of the Rules; and
(b)An alternative available to the father, was the application of r 10.13(1)(a) of the Rules.
Out of an abundance of caution I shall also address both alternatives.
In these proceedings, s 64B empowers me to make a ‘parenting order’ which I can, provided I think it is ‘proper’ to do so (s 65D) in light of the objects of the Act and the underpinning principles of those objects: s 60B.
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration (s 60CA); and ss 60CC(2) and (3) set out the matters to which I must have regard to in doing so.
Section 69ZN says this -
69ZN Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(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.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible
(my emphasis)
The principle in Rice & Asplund
Before reflecting further on the circumstances of this case, it is important to remind myself of what Evatt CJ said in Rice & Asplund.
7.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 be to invite endless litigation … change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
(my emphasis)
Sitting as the Full Court, the Honourable Collier J observed in King & Finneran [2001] FamCA 344 at paragraph [50] that:
50....The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
The Full Court in Marsden & Winch [2009] FamCAFC 152 (‘Marsden & Winch’) said at paragraph [50]:
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
The Honourable Justice Warnick in SPS & PLS [2008] FamCAFC 16 – (‘SPS & PLS’) observed at [81] that when the threshold question described in Rice & 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 done so because assuming the evidence of the applicant is accepted, there is insufficient change in circumstances to justify embarking on a hearing. His Honour went further to say that:
81....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 Carriel & Lendrum [2015] FamCAFC 43 (‘Carriel & Lendrum’), the Full Court said at [57]:
57.In a case where the principle in Rice & Asplund 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 children 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 or children to embark upon further litigation enquiring as to the child or children’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
The Full Court in Walter & Walter [2016] FamCAFC 56 – (‘Walter & Walter’) – at [51] confirmed SPS & PLS insofar as where, as a preliminary matter:
51.… the question of whether a sufficient change in circumstances has occurred … it is accepted that the applicant’s evidence should be taken at its highest.
In Stern & Colli [2022] FedCFamC1A 95 – (‘Stern & Colli’) – the Full Court confirmed the approach to be taken in these cases when at [35], the Full Court adopted the approach in another Full Court decision of Defrey & Radnor [2021] FamCAFC 67, where at paragraphs [21] and [22], the Full Court said this:
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 section 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 section 60CC(3)(l) 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 or her parents. There is a focus in an application of this kind upon the changes 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.
At [22], part of that paragraph says this:
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.
I turn then to the alternatives which it has to be said, were not prosecuted by either party but to which I will do so in an attempt to cover all the bases.
The application for summary dismissal – rule 10.09
There has been some judicial consideration of a reliance on the Rules of Court to apply for summary dismissal of an application to re-open parenting proceedings and the interplay with the principle in Rice & Asplund. For example, in the decision of the honourable Justice Hogan in Gingham v Gingham [2013] FamCA 727 (‘Gingham’), the Court had to consider the mother’s application to vary parenting orders made by her Honour which application had been filed whilst the mother’s appeal of those parenting orders was still to be determined by the Full Court. In response, the father sought to dismiss that application to vary relying on two sources of power – the principle in Rice & Asplund or the power to summarily dismiss pursuant to rr 10.12(c) or 10.12(d) of the Family Law Rules 2004 (which were in effect at the time).
To be clear, those sub-rules can now be found as part of r 10.09[1] which for ease of reference is set out below -
[1] See rr 10.09 (1)(c) & 10.09 (1)(d)
Rule 10.09 Application for summary orders
(1) A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
(2) An application under this rule must be made by filing an application in accordance with the approved form.
(my emphasis)
At paragraph [17] of Gingham Hogan J noted –
17.Whilst the father’s application proceeds on alternative grounds, I consider that a consideration of whether there has been a sufficient change in circumstances since the May 2011 order pertains to all bases relied upon. This is because it could hardly be concluded that the current Application is “vexatious” or an “abuse of process” or has “no reasonable likelihood of success” if there was established such changed circumstances of the nature and extent as would satisfy the “rule” in Rice & Asplund (1979) FLC 90-725.’
By implication, Hogan J formed the view that in determining applications that opposed (in effect) the re-opening of parenting proceedings, the principle in Rice & Asplund took precedence over the application of the Court Rules. As a result, if the Court finds that there has been a sufficient change in circumstances that warrants re-litigation, then a consideration of a summary dismissal application based on the application being frivolous, vexatious or an abuse of process or having no reasonable likelihood of success is otiose.
The court’s discretion to vary or set aside an order made in the absence of a party – rule 10.13
Rule 10.13 of the Rules relevantly permits the court the discretion, at any time to vary or set aside an order if it was made in the absence of a party: r 10.13(1)(a).
Prior to 1 September 2021 (when the Rules came into effect), the comparable rule was r 16.05 of the Federal Circuit Court of Australia Rules 2001 (Cth).
In Thomas & Hogan [2013] FCCA 1108 (‘Thomas & Hogan’), Judge Jarrett (as he then was) contemplated the application of r 16.05 in circumstances where at the trial, the mother failed to appear, due to her decision to put herself and the subject child (then about 10 years of age) into hiding. Consequently, the trial proceeded on an undefended basis with orders made including for the child to live with the father, for the father to have sole parental responsibility, for the child to spend supervised time with the mother and for a recovery order to issue to secure the child and place him with the father.
Curiously, and without any real change to the child’s living arrangements (despite the final orders), about a year later, the father and the mother subsequently agreed to discharge those orders in lieu of orders for the child to live with the mother and for the child to spend no time with the father unless agreed between the mother and the father with supplementary orders meant to ensure that neither party had any ongoing child support liability (including arrears) and that each party bear their own costs. The Independent Children’s Lawyer in that case refused to consent to the orders until they met with the child (which never happened).
In reflecting on the parents’ consent position which was premised on the application of r 16.05(2)(a), his Honour observed that –
18.… it is not simply enough to apply for an order under r 16.05(2)(a): it is necessary to demonstrate that the Court should exercise its discretion and set the orders aside. A number of factors are generally thought to be relevant to that exercise. The first is an explanation for the failure to appear, and the second is some material which demonstrates that different orders to those now sought to be set aside might be made if the matter was litigated again.
In reflecting on the second factor of a number of factors identified above, his Honour noted the exercise of discretion in making different parenting orders to those now sought to be set aside is different as between a contest between the parties versus consent orders. Relevantly for me, I have a contest and in that regard I note his Honour’s comments below –
24.When the Court comes to make parenting orders under the Family Law Act, it must do so in accordance with Part VII of the Act. That requires the Court to apply the paramountcy principle set out in s 60CA of the Act. How a Court works out what is in a child’s best interests is determined by s 60CC and the matters set out therein…
25.Thus, if the orders were not made by consent, the Court is required to have consideration or give regard to those matters set out in ss 60CC(2) and (3)…
In Richardson & Colombo [2021] FedCFamC1A 35 (‘Richardson & Colombo’) at [63] & [64], Strickland J (sitting as the Full Court), considered the Court’s unfettered discretion pursuant to r 16.05(2)(a), citing two Full Court cases being Barbey & Tuttle (2013) FLC 93-354 (‘Barbey & Tuttle’) and Malak & Malak (2016) FLC 93-718 at [63] & [64]. In Richardson & Colombo at [64], Strickland J said this –
64 In summary, although the discretion to be exercised is unfettered, the following factors are to be considered:
(1) A reasonable explanation for the applicant’s absence at the hearing.
(2) Material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside.
(3) No prejudice to the party with the benefit of the orders.
And, in that context, the delay, if any, in bringing the application.
In Barbey & Tuttle at [48] & [90], the Full Court inferentially adopted various principles set out by Federal Magistrate Jarrett (as His Honour then was) in Clifford & Mountford [2006] FMCAfam 450 (‘Clifford & Mountford’) at [34] as follows –
34.From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r 16.05(2)(a):
a. The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
b. There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r 16.05(2)(a), namely:
i.a reasonable explanation for the applicant's absence at the trial or hearing;
ii.material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
iii.no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
c. Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i.Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii.Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii.the conduct of the applicant since the judgment or order sought to be set aside was made.
In Chetti & Bhavalakar [2022] FedCFamC2F 194 (‘Chetti & Bhavalakar’) at [40], Judge O’Shannessy adopted the principles set out in Clifford & Mountford at [34] as being applicable to r 10.13(1)(a) and added a fourth consideration that is relevant to the exercise of the unfettered discretion at r 10.13(1)(a) being –
40.The list of relevant matters should include a fourth one and that is whether or not the party now seeking to set aside the orders waited to see how the orders worked or unravelled for him or her. That is, whether they were able to live with the orders and only complained later on, when they did not like some aspect of the orders made in his or her absence.
In setting out part of the primary judge’s considerations, this concept was also touched on by Strickland J in Richardson & Colombo at [51] although no support (or otherwise) can be deducted from his Honour’s reasoning.
Having regard to Judge Jarrett’s comments in Thomas & Hogan at [25] and the summary set out by Strickland J in Richardson & Colombo at [64], I am satisfied that in exercising my unfettered discretion[2] pursuant to r 10.13, many of the factors that inform my decision-making process coalesce as between the two alternative bases for relief[3] including –
(a)The circumstances around the making of the orders sought to be varied or set aside;
(b)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing; and
(c)The weighing of any likely changes against the potential detriment to the children caused by the litigation itself, or put another way whether any prejudice to a party can be adequately addressed by the Court.
[2] Richardson & Colombo at [64]
[3] See for example, Marsden & Winch at [50] and Richardson & Colombo at [64]
THE EVIDENCE
Before accepting some of the evidence, I raised concerns about both parties’ compliance with the Rules. I am grateful to counsel for the mother and the lawyer for the father for the manner in which they conducted themselves, insofar as –
(a)the mother’s counsel sought to address my concerns, which saw various paragraphs struck out; and
(b)the father read only one affidavit, not two.
In relation to the mother’s expansive affidavit, even with some material struck out it remained difficult to say whether the remainder complied with r 2.14 (1) and despite this difficulty, the father did not press any further objection. On that basis, even if the affidavit was not compliant, I found that it was in the interests of justice to permit the mother to rely upon it: see r 1.31.
This Court does not appreciate its time being wasted over counting pages, looking at line spacing, and checking font sizes. It might seem really clever. It is not. As the independent umpire, it is important that my neutrality is not only implicit but seen in action, and thus where one party is not ostensibly “playing fair”, I consider myself duty bound to call that behaviour out so that I can either make a determination that nonetheless the non-compliance should be tolerated in the interests of justice (r 1.31) or strike it out. Either way, at least the other party observes me to be impartial to the dispute being played out before me and in addition I am preserving the overall processes of the Court.
Rather than consider the admissibility and weight of some of the evidence sought to be relied upon in a vacuum, it was easier for me to deal with those issues (as they arose) during the course of my consideration and analysis of the facts.
That said, the mother read or relied upon the following documents:
(a)Affidavit of Ms Swanson, filed 9 November 2022[4] (with various redactions);
(b)Notice of child abuse, family violence or risk filed 13 September 2022;
(c)Response to Final Orders filed 13 September 2022;
(d)Exhibit ‘M1’- Outline of Case document of the mother filed 23 November 2022.
[4] For convenience, references to any content within the affidavit of Ms Swanson shall be prefaced by the letters ‘’, followed by the numbered paragraph with the annexures identified alphanumerically.
The father read and/or relied upon the following documents:
(a)Amended initiating application filed 18 August 2022;
(b)Affidavit of Mr Swanson filed 31 October 2022;
(c)Exhibit ‘F1’ - Outline of Case document of the father filed 24 November 2022;
(d)Exhibit ‘F2’ – amended verdict and judgment record of Deputy Chief Judge B dated 2019 made in the District Court of Queensland at City C in relation to the defendant, Mr Swanson.
The parties each invited me to have regard to the final orders.
THE PARTIES’ PROPOSALS
The mother opposed the re-opening of the parenting proceedings and sought an unspecified amount for costs. It was common ground that if the mother’s primary relief was granted, there was insufficient evidence before the Court to determine the costs application and that future directions would be necessary. Curiously, both parties are legally aided and if the dispute goes that far, it will be of interest to me to see what costs the mother seeks, that are not otherwise covered by her grant of aid and/or for which the payment of same to her are not in breach of her grant of aid.
The father wants to re-open the parenting proceedings. On a final basis his relief is not articulated other than to say that he will consider his position following the preparation of a s 62G child impact report. This position is particularly unhelpful to me insofar as the application of r 10.13 (and what I recorded as the “second stage” of that discretion). The same can be said about how I can exercise my discretion pursuant to Rice & Asplund as to whether it is in the best interests of the children to re-open the proceedings insofar as making findings about the likelihood of orders being varied in a significant way, as a result of a new hearing and if there is such a likelihood, the nature of the likely changes weighed against the potential detriment to the children (see Marsden & Winch at [50]).
From the father’s submissions and his final and interlocutory relief as recorded in his amended initiating application, at this stage it seems that he only seeks to vary the final orders restraining the children from spending any time with him but what time the children should spend (and how that is facilitated) remains unclear until a forensic investigation has been completed and /or family therapy is engaged.
In drawing this inference and making these comments I do not necessarily intend to be critical of the father’s relief given that he has no knowledge as to the whereabouts of the children and has had no contact with them for four (4) years.
In order to consider the various applications it is necessary for me to set out a short chronology of the parties’ circumstances, noting decisions such as SPS & PLS and Walter & Walter, permit me to take the father’s evidence at its highest.
CHRONOLOGY
Given the scope of this dispute and the limitations implicit in the weight and/or findings I can make (particularly on any untested evidence that the mother relies upon), not all of the family’s history will be recorded and sometimes, this evidence will be included within my analysis and conclusions rather than here. I have read all the evidence that was read and/or relied upon for the hearing.
In 1981 the father was born and he is now 41 years of age.
In 1986 the mother was born and she is now 36 years of age.
The father says that the parties’ relationship commenced in or around 2003 and ended 14 years later in December 2017.
X was born in 2009. Y was born in 2011 and Z was born in 2016.
The mother’s untested evidence is that sometime before 2015, the father was diagnosed with post-traumatic stress disorder (‘PTSD’) after experiencing trauma as a result of an accident.
In the years that follow, the untested evidence of the mother is that the father was –
(a)admitted to hospital for overdosing on Y’s prescribed oxycodone medication (2015);
(b)voluntarily admitted to an alcohol rehabilitation facility at City D (2015?);
(c)supported by a health worker in caring for X and Y whilst the mother was in hospital following the birth of Z (2016);
(d)admitted on several occasions to a Region E hospital and/or mental health ward within the hospital (2017); and
(e)under the care of a mental health acute care team for PTSD at the time of separation (December 2017).
The father says that following separation, he did not move out of the family home until the police successfully applied for a family violence order in January 2018 (‘the Jan 2018 DVO’).
The mother’s untested evidence is that post-separation whilst the parties lived separately under the same roof the father perpetrated various acts of family violence which ultimately culminated in the father damaging the home in which the family lived and driving his car into the back of the mother’s car.
As a result of this last incident the mother says that a final family violence order was made on 6 February 2018 (‘the Feb 2018 DVO’).
The untested evidence of the mother provides details of various events that occurred after the making the Feb 2018 DVO and she says that as a result, the father was charged with breaching the Feb 2018 DVO and (it would appear from exhibit ‘F2’) that the father was also charged with other criminal offences including unlawful stalking, stealing and sexual assault.
On 19 March 2018, the mother commenced parenting and property proceedings. At the time the father was on remand and it took some time for him to engage a solicitor.
On 17 April 2018, the proceedings had a first return date and whilst the father says he has no recollection of being made aware of that date, I take judicial notice that ordinarily the first return date is always engrossed on the initiating application before service copies are released to the applicant. In any event, the orders of that event (‘the April 2018 orders’) directed the mother serve a copy of the orders upon the father, as well as making other orders including for the father to file his material and the appointment of an independent children’s lawyer.
Although not clear from the evidence before me, it appears that on 24 May 2018, the proceedings were adjourned.
At some point the father must have been aware of the proceedings given his evidence about being taken to a different location in gaol for the purposes of attending hearings (although he says he ultimately did not get connected to the hearings) and attached to his affidavit is a response seeking parenting orders that is dated 19 June 2018 (post-dating the second return date of 24 May 2018).
Attached to the mother’s affidavit is a protection order varied order dated 21 June 2018 (‘the June 2018 DVO’) which names the father as the defendant and protects the mother and the children. The June 2018 DVO extended for five (5) years until 20 June 2023 and with the father appearing by video, a summary of the orders made were that –
(a)The father be of good behaviour towards the mother and the children and not commit acts of domestic violence and/or associated domestic violence and/or expose them to domestic violence;
(b)The father be restrained from entering, attempting to enter or approach to within 100 metres the residence of the mother and the children or any place of education or child care where the children may be unless agreed in writing or by way of court order;
(c)The father be restrained from following or remaining or approaching to within 100 metres the mother or the children wherever they may be except to appear before a court or tribunal, to attend a specified event (such as a mediation), in accordance with a court Order or as agreed in writing with the mother;
(d)The father be restrained from contacting or attempting to contact or asking someone else to contact the mother or the children by any means whatsoever except to appear before a court or tribunal, to attend a specified event (such as a mediation), in accordance with a court Order, as agreed in writing with the mother or via text or email if the contact is about parental or contact issues and if about property settlement then only by email; and
(e)The father be restrained from locating, attempting to locate or asking someone else to locate the mother or the children.
Ultimately the final orders were made by the Court on 5 September 2018 noting that Mr Dooley was recorded as appearing for the respondent. On the same date, the property proceedings were adjourned to 7 December 2018.
At paragraph 20 of his affidavit the father says this –
20.I recall that whilst I was in prison on as many as four occasions, I was taken to the video link area to be connected to the Federal Circuit Court. However, on each occasion I never had the opportunity to be dialled into the Court. The final orders in relation to parenting were made in my absence without my appearing or having representation. Annexed hereto and marked “C” is a copy of those orders.
When I initially reviewed the final orders, I noted that the document recorded no appearance by the respondent, but then an appearance by Mr Dooley on behalf of the respondent. In the absence of any competing submissions or contrary evidence, I accept that Mr Dooley appeared as the Independent Children’s Lawyer and not on behalf of the father.
On 16 August 2019, the mother’s treating psychologist Mr F produced a letter addressed to the City C District Court.[5] I accept the submissions of the father’s advocate that given the inability to test Mr F’s opinion and despite the application of s 69ZT of the Act, it would be unfairly prejudicial[6] for me to accept the PTSD diagnosis of the mother contained within that report because the author’s qualifications (as identified from the face of the document) do not support him having the specialised knowledge (based on his training, study or experience) to give the diagnosis.[7] In addition, on closer inspection the diagnosis is also infected by a lack of articulation as to the facts upon which the opinion was based and/or the implicit assumptions as to the facts on which the opinion was based.[8]
[5] See -[75] and annex D
[6] See s 135 Evidence Act 1995 (Cth)
[7] See Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [37]
[8] See Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [64]
But having made those observations, and given this is a business record from the mother’s treating psychologist at the time, I accept that –
(a)As a result of a mental health care plan dated 28 November 2017, Mr F first engaged with the mother to provide psychological intervention in order to address symptoms of moderate depression, mild anxiety and moderate stress associated with the mother being the primary carer for the father due to his significant mental health issues;
(b)Following what Mr F describes as Ms Swanson’s verbal, physical and sexual assault committed by her then husband, Mr F observed a significant and swift deterioration of Ms Swanson’s mental health.
Exhibit ‘F2’ is the amended verdict and judgment record for the father in 2019 which identifies that the father –
(a)Pleaded guilty to five charges of contravening a domestic violence order for acts perpetrating collectively from 14 February 2018 through to 19 February 2019 – noting that Charge #3 identifies that the offence/s was/were perpetrated during a period when the father must have been on remand and the mother gives some untested evidence about the father’s actions which may have contributed to this charge[9];
(b)Pleaded guilty to one charge of wilful damage – domestic violence offence for an offence perpetrated on 7 January 2018;
(c)Pleaded guilty to one charge of stealing for an offence perpetrated on 6 March 2018;
(d)Pleaded guilty to one charge of unlawful stalking uses/threatens violence/contravenes/threatens to contravene an order/injunction for an offence perpetrated between 14 February 2018 and 7 March 2018;
(e)Pleaded guilty to sexual assaults – domestic violence offence for an offence perpetrated on 6 March 2018.
[9] -[70]
Exhibit ‘F2’ specifies that –
(a)some but not all of the charges resulted in convictions;
(b)some of the convictions were not punished and;
(c)the majority of the convictions resulted in suspended sentences enduring over four (4) years.
In addition, exhibit ‘F2’ also records that by consent a restraining order was made (informed by charges #1 and #2 which related to an offence of wilful damage [07.01.2018] and contravention of domestic violence order [14.02.2018 to 23.02.2018]) (‘the Aug 2019 restraining order’). The Aug 2019 restraining order does not expire until 29 August 2029 and the terms of the order are transcribed below –
·Mr Swanson is prohibited from approaching or attempting to approach Ms Swanson.
·Mr Swanson is prohibited from harassing or intimidating, either directly or indirectly Ms Swanson.
·Mr Swanson is prohibited from communicating or attempting to communicate with, either directly or indirectly, Ms Swanson via any means.
·Mr Swanson is prohibited from directly or indirectly entering, going to, loitering near, or remaining in work premises or the home addresses of Ms Swanson.
·Mr Swanson is prohibited from threatening or attempting to threaten, in any manner, Ms Swanson.
Ignoring the mother’s untested evidence, in stark contrast to the incontrovertible evidence found within Exhibit ‘F2’ and the June 2018 DVO, about the circumstances surrounding why he was a defendant to a family violence order that protects the mother and the children, why he was charged with various offences, why his bail was refused and why he was ultimately convicted and is now the subject of a 10-year restraining order; the father says this –
10.In or around March 2018 I was charged with breaching the DVO on two occasions.
11.The charges included allegations that I had sexually assaulted [Ms Swanson] in or around March 2018.
12.I was refused bail in relation to the above charges.
13.I ended up entering a plea to one count of sexual assault and one count of stalking. I was sentenced and released on the day of my plea after spending 18 months in custody.
…
21.In or around mid 2019 I was released from prison.
22.My release from prison occurred following my plea of guilty to a set of amended facts.
The untested evidence of the mother is that post his release, the father or his associates have continued to harass her and her associates and that she has reported some of these incidents to the police.[10] The weight I can give to this evidence is limited not only by its untested nature but by the lack of any subpoenaed material from the police to support the mother’s contentions.
[10] -[72]
On 28 March 2022, the father initiated these parenting proceedings. There is no evidence to explain why there was a delay of over three (3) years following his release from custody, although I apprehend from the evidence before me, that he would likely have been hindered in prosecuting his case earlier by not knowing where the mother lived. As such no adverse finding per se will be made, particularly given the discourse between bar and bench during submissions about that point.
It was uncontroversial that a Commonwealth information order was made in March 2022 and that since that time, both parties have engaged in the processes of the Court that bring them to the hearing on 24 November 2022.
In his affidavit, the father says that he has not been convicted of any offences since his release.
In that same document and despite his antecedents, the father says only this about his current mental health status –
25.I am stable in relation to my mental health and maintain an appropriate level of treatment.
The mother says that post-2018 she herself has now been diagnosed with PTSD (although there is no admissible evidence to support the diagnosis) and in the past has required counselling and medication but for now she is self-managing her conditions.
The mother says that she continues to fear for the safety of herself and the children. The mother says that the father’s behaviour scares her and she fears for the lives of herself and her children. From the submissions of her counsel, I apprehend the mother is likely to argue at any future hearing that her parenting capacity may be significantly impinged by any variation to the existing ‘no time’ order.[11]
[11] See for example - Sedgley and Sedgley [1995] FamCA 154 (‘Sedgley’), Re Andrew [1996] FamCA 43 (‘Re Andrew’) and Keane & Keane [2020] FamCA 99 at [82] – [93]
In relation to the children’s current circumstances, the mother’s untested evidence is that –
(a)The children are happy and well-adjusted and utilise school counsellors as needed;
(b)The children (although I infer this is more likely to relate to X and Y) still suffer from their experience with the father;
(c)X has anxiety and can experience nightmares about the father. X was engaged with counselling services until 2021. X is aware of what to do if she sees the father (an escape plan) and was a witness to family violence and/or recalls her exposure to past family violence. Inferentially from the mother’s evidence[12] the mother says that X has expressed a wish not to see the father and that she remains scared and fearful of the father;
(d)Y continues to engage with counselling and the mother observes her son to have become very protective as a result of being affected by what the mother describes as ‘the family dynamics’.[13] The mother says Y has expressed a wish not to have contact with the father and that he feels worried and scared for the family if there was contact with the father.
(e)Z has no working memory of his father but a few months ago, he asked about his ‘dad’ and as a result, the mother has reached out to support services with a view to engaging in counselling for Z.
Analysis – The mother’s Rice & Asplund application to dismiss the father’s parenting application
[12] -[84]
[13] -[85]
The views of Hogan J in Gingham[14] and Judge Jarrett in Thomas & Hogan[15] are consistent in placing some significance on ss 60CA and 60CC (which is the backbone of the principle in Rice & Asplund) in the application of discretion within rr 10.09 and 10.13. This is because although the discretion to be applied in rr 10.09 and 10.13 (insofar as parenting orders is concerned) may be overtly different, drilling down into it, the discretion is very much informed by the paramountcy principle which is the guiding light behind an application made pursuant to Rice & Asplund. That is, the orders must have been in the child’s best interests back then, and now it is inherently the case that further disputation will not be in the child’s best interests, unless a prima facie case of changed circumstances justifies this occurring.
[14] At [17]
[15] At [25]
Consistent with their approaches, in line with the authorities leading up to Stern & Colli, the first stage of my task is to make findings of fact as to what change in circumstances there have been since the making of the final orders.
In summary, the mother submits that there has been no change in circumstances because, although the father may have been released from gaol since the final orders were made, all the risks that she says attenuated the making of the final orders are unchanged. This proposition is somewhat tenuous to make given no reasons for the making of the final orders was before the court, nor any evidence that may have informed the exercise of discretion. Of course, given the mother’s obligation to make disclosure about such things, it is safe to infer that at the very least, in September 2018 the Court would have been aware of the Feb 2018 DVO, the June 2018 DVO and that the father was on remand on charges for offences against the mother.
The father says that at the time of the final orders, he was incarcerated, such that even if he had participated at the hearing, practically there was little in the way of options available to the Court other than to make the parenting orders it did or to delay a final determination until an unknown date when the father’s circumstances became more certain. Now that the father is released, it was submitted that this fact represented a significant change in circumstances that would satisfy at least the first part of the principle in Rice & Asplund.
Having carefully considered the evidence and the submissions, I find that by the very fact that the father is now in the community, a significant change of circumstances has occurred because -
(a)at the time of the making of the final orders, the date of the father’s release could not have been known and/or speculated such as to enable the court to make orders other than in the form adopted; and
(b)the father’s release into the community is a factor which now materially changes the options that may be available to the Court in the exercise of its discretion to make parenting orders.
Having made this finding, where does this take me and does it mean I should re-open and re‑visit the final orders?
In line with Stern v Colli, the second stage of my inquiry is to assess whether or not the change in circumstance is sufficient to provoke a new inquiry (through the prism of the children’s best interests). In other words, has a prima facie case been established of a changed circumstance that would justify a fresh round of litigation as being in the best interests of the children?
In my view, the change of circumstance is insufficient to provoke a fresh trial largely because the utility in re-opening the parenting proceedings with a view to changing the final orders is extremely limited due to my view that upon weighing up the two primary considerations, I am satisfied that the risks posed by the father’s past offending have not been ameliorated to such an extent as to cause me to prioritise the potential for the children to have a meaningful relationship with him: s 60CC(2A).
In addition, when I look to the s 60CC(3) factors I also find that -
(a)There would be adverse effects to the children from any changes in the children’s circumstances including the likely effect on the children from separation from the mother: s 60CC(3)(d);
(b)There was the potential for the mother’s parenting capacity to be severely impaired should the parenting proceedings be re-opened notwithstanding that at the present time, the father’s final parenting position is unknown and (it seems) that on an interlocutory basis, other than a s 62G child impact report, the most the father has sought is a re‑introduction process through family therapy: s 60CC(3)(f); and
(c)There is no evidence to support the father having the capacity to meet the needs of the children: s 60CC(3)(f)
It is important that I explain the basis for the above findings.
Having pleaded guilty to nine charges in mid 2019, the father was released. Since then, the father has had three (3) years to reflect on his past actions including the impact upon his victims which, given the terms of the June 2018 DVO must have included at least the children either having been exposed to domestic violence or associated domestic violence (to use the language within those orders) or having the potential to be so exposed.
The father is the defendant and the mother is the protected person in not one but two orders – firstly a five (5) year domestic violence order (the June 2018 DVO) and/or a 10 year restraining order (the Aug 2019 restraining order).
The father must have some knowledge that his mental health would be of interest to the Court given paragraph 25 of his affidavit.
Yet, despite all of this incontrovertible evidence, taking his case at its highest, the best evidence he can offer is that –
(a)he was charged with two counts of breach DVO and charges related to sexually assaulting the mother – all of the offences having occurred in or around March 2018;
(b)he ended up pleading guilty to one count of sexual assault and one count of stalking;
(c)he is stable in relation to his mental health and he maintains an appropriate level of treatment;
(d)he has not been convicted of any offences since he was released.
Nowhere does the father depose to what acts he did that caused him to plead guilty, demonstrate that he accepts responsibility for his actions (whatever they were) or specifically identify what he has done since his offending to demonstrate that he is rehabilitated and no longer poses a risk of harm. Indeed he does not appear to even know how many charges and or/convictions he was subject to, again, causing me to infer that he has not seriously contemplated his actions and/or convictions in any way that would demonstrate the potential for rehabilitation, remorse and the reduction in his risk of (at the very least) perpetrating family violence in the future.
There is no evidence of any insight into the harm caused to the children from his offending behaviours, his absence from their lives since, or how he plans to appropriately build relationships with the children now. The absence of this evidence means that it is nigh on impossible for me to find that the children would actually benefit from having a relationship with him or even that there is the potential for them to benefit.
At least at the time of being served with the mother’s initiating application back in 2018, the father must have been aware that she saw him as a risk to the children and to herself. Yet no evidence is before the Court to suggest any insight whatsoever.
The mother has been the victim at the hands of the father. The mother is the primary carer of the children and has been since at least the time of the father’s incarceration in early 2018. Mr F’s observation of the mother was that at some point after he met the mother in late 2017 her mental health significantly deteriorated.
By the nature of the uncontested Court records and the absence of the identification of any other victims within the parties’ evidence, it is safe for me to infer that the mother was the victim in the offending that formed the basis of the ‘sexual assaults – domestic violence offence’ as well as being the victim of other offences which either are specifically characterised as relating to an existing family violence order (breach or threat to contravene) or being a domestic violence offence.
There are nine (9) guilty pleas for conduct enduring over a year, part of which time the father was incarcerated.
So from the mother’s perspective, even when the father was in custody - he continued to offend and if nothing else, this circumstance in itself must go some way to explain the duration of the June 2018 DVO and the Aug 2019 restraining order.
In light of these circumstances, and in the absence of any evidence of remorse or rehabilitation from the father, it is open to me, even on an untested basis, to place some weight on the mother’s fears and apprehension about these proceedings going any further.
The father has been a party to all these findings and orders of which he has either pleaded guilty to, has been present during the making of, and at least insofar as the Aug 2019 restraining order - he consented to. The state of the father’s evidence by which he could have sought to reassure the mother about any contrition he has and/or steps he has taken to rehabilitate himself (insight/empathy) satisfies me that the mother’s concerns about the impact on her (and her parenting capacity) from a re-opening of these proceedings is well-founded.
These findings about the father’s lack of insight/empathy also flow on to his ability to meet the needs of the children, because again, nowhere does his evidence address how he intends to support them either emotionally and/or possibly psychologically from his re-introduction into their lives after so many years apart.
I have carefully considered the father’s submissions about the children’s limited exposure to parenting proceedings to date which should positively influence me in finding that the ongoing conduct of these proceedings (and their subsequent exposure to, for example, a forensic interview pursuant to s 62G) is in their best interests. This consideration is of course informed by Principle 1 at s 69ZN. Given the findings I have made about the risk posed to the mother (in circumstances where she is their primary carer and meets all their needs) and the father’s lack of insight/empathy (which I have found means there is limited prospects of him being successful in his substantive application), despite their limited exposure to date, it is not in the children’s best interests to continue to conduct these proceedings.
In relation to the father’s submissions about the importance of exploring the children’s views, for the same reasons as set out immediately above, I am not convinced that the exploration of those views justifies their exposure to even the concept of them spending time with the father or somehow being re-introduced to the father in circumstances that include but are not limited to their lived reality of not having had anything to do with the father for at least four (4) years.
In my view, the change in circumstance is insufficient to provoke a fresh trial largely because the utility in re-opening the parenting proceedings with a view to changing the final orders is extremely limited due to my view that upon weighing up the two primary considerations, I am satisfied that the risks posed by the father’s past offending have not been ameliorated to such an extent as to cause me to prioritise the potential for the children to have a meaningful relationship with him: s 60CC(2A).
If I am wrong about that, I have come to the same conclusion because of my findings about the additional considerations set out earlier which cause me to find that the father’s lack of insight/empathy means that the prospect of the children benefitting from any form of relationship with him is minimal and the risk of adverse impacts upon them from a change in their circumstances and their exposure to the litigation (amongst other considerations) outweighs the minimal benefit they may obtain from a re-introduction to him.
For the reasons above, I am not satisfied that the father has established a prima facie case of changed circumstances that would justify embarking on another contested parenting hearing as being in the children’s best interests.
Analysis – The exercise of discretion to summarily dismiss
As noted earlier, no submissions were made pursuant to the application of r 10.09 but out of an abundance of caution I intend to do so and consider that in particular, r 10.09(1)(c) and 10.09(1)(d) may have application.
In light of my adoption of Gingham at [17] I am satisfied that having found that the father has not established a prima facie case to re-visit the final orders for the reasons set out above, there is no need for me to exercise my discretion pursuant to r 10.09. Even if there was, the evidence summarised by me earlier, easily enables me to find that the father has no reasonable likelihood of success given his inability to address the key incontrovertible risk issues most cogently demonstrated by his criminal convictions, incarceration and of him being the defendant to:
(a)a 10-year restraining order protecting the mother from having any contact or communication with her; and
(b)a five (5) year family violence order protecting the mother and the children from him that remains in place until 20 June 2023.
Analysis – The exercise of an unfettered discretion to vary or set aside an order made in the absence of a party
As noted earlier, no submissions were made pursuant to the application of r 10.13 but out of an abundance of caution I intend to do so and consider that in particular, r 10.13(1)(a) applies.
As noted earlier, r 10.13(1)(a) permits the Court the discretion to at any time vary or set aside an order made in the absence of a party. There is no doubt that the factual matrix of this case, causes the rule to be triggered provided that I am satisfied that I should exercise my discretion and act upon the final orders.
Reflecting on Thomas & Hogan, I have had regard to the father’s explanation as to why he failed to file any responding material and/or to appear on at least three occasions in April, May and September 2018. Taking his evidence at his highest, I accept that there were difficulties, most of which were out of his control (which of course is why incarceration is seen as a form of punishment in the first place).
I share a similar view to Judge Jarrett[16], insofar as that I should have regard to the paramountcy principle[17] and the children’s best interests in assessing whether the material before the Court demonstrates that different orders to the final orders might be made if there was a re-litigation.
[16] Thomas & Hogan at [24]
[17] Section 60CA
That said, for the reasons set out below the other factors that may be relevant to the exercise of my discretion pursuant to r 10.13(1)(a) fall short of enabling me to use my unfettered discretion to vary or set aside the final orders because they were made in the absence of the father.
This is because –
(a)There was extremely limited material arguments available to the father that might reasonably lead to the making of an order different to that sought to be set aside, something I have canvassed earlier in terms of a consideration of the children’s best interests pursuant to ss 60CA and 60CC;
(b)There are likely to be significant adverse impacts upon the mother and the children, firstly, because the final orders have been in place for such a long time so there arises a real concern about the impact of a change in circumstance upon them and secondly, because they are all variously specified as being persons in need of protection from the father and/or (in the mother’s case) have been the victim of criminal acts including sexual assault which causes me to find that the prejudice likely to be occasioned by them having to re-engage in a Court process is not able to be adequately addressed by the Court – particularly in light of the complete lack of contrition displayed by the father to-date.
As to the fourth consideration identified in Chetti & Bhavalakar, there was insufficient evidence upon which I could make a finding.
Costs application
The mother sought as part of her relief for a costs order to be made against the father for an unquantified amount.
It was an agreed position that any such application could not be prosecuted in those circumstances and orders will be made allowing for such an application to be made (in line with r 12.13).
As an aside, I reiterate that both parties are legally aided and the point of seeking a costs order does not appear to be immediately apparent to me.
For the reasons above, the parenting orders I make are in the best interests of the children or otherwise appropriate and/or in the interests of justice.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 13 December 2022
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