TAYBOR & ANDERSON

[2017] FamCA 1091

FAMILY COURT OF AUSTRALIA

TAYBOR & ANDERSON [2017] FamCA 1091

FAMILY LAW – CHILDREN – Application to reopen parenting proceedings – Consideration of the principles in Rice & Asplund – Best Interests of the child – Where the mother seeks to substantially vary final parenting orders made in September 2009 – Where the mother argues there has been a change in circumstances such that it would be in the best interests of the child to reopen proceedings – Where the father opposes the mother’s application – Where the orders from September 2009 as to the mother’s time with the child are unenforceable – Where the mother has sought psychological treatment in response to the 2009 single expert’s concerns – Where the mother has demonstrated personal growth – Where the mother is only seeking change to orders regarding her time and contact with the child – Where the age of the child and her views should be given some weight – Where the nature of the likely changes to parenting orders may have sufficient benefit to outweigh the potential detriment to the child caused by the litigation itself – Where there has been a sufficient change in the child’s circumstances such that it is in her best interests for the parenting proceedings to be revisited.    

Anderson & Taybor [2014] FamCA 23

Anderson & Taybor [2017] FamCA 698

Marsden & Winch [2009] FamCAFC 152

Miller & Harrington (2008) FLC 93-383

Prewett & Mann [2013] FamCAFC 130

Rice & Asplund [1979] FLC 90-725

Taybor & Anderson (No. 2) [2009] FamCA 923

APPLICANT: Mr Taybor

RESPONDENT: Ms Anderson

FILE NUMBER: PAC 5282 of 2008

DATE DELIVERED: 21 December 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 29 September 2017

REPRESENTATION

SELF REPRESENTED APPLICANT: Mr Taybor

COUNSEL FOR THE RESPONDENT: Ms Barnett

SOLICITOR FOR THE RESPONDENT: Lovemore Lawyers

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5282  of 2008

Mr Taybor

Applicant

And

Ms Anderson

Respondent

REASONS FOR JUDGMENT

Introduction

1. This application concerns E (“the child”), who is 12. The child’s parents, Ms Anderson (“the mother”) and Mr Taybor (“the father”) have been in dispute at various times about the child’s parenting arrangements for most of the child’s life.

2. Final parenting orders were made by Collier J on 4 September 2009[1] (“the September 2009 orders”) following a defended hearing. These orders provide in summary that the father has sole parental responsibility for the child and that the child lives with the father. Further orders restrain the mother from removing the child from Australia, speaking to journalists and making complaints of sexual abuse of the child without notice to the Independent Children’s Lawyer (“ICL”) or the court and provided for the mother to spend supervised time with the child on two occasions each week at a contact centre. The child’s time with the mother was to continue to be supervised until the child turned 11 at which time she was to commence spending unsupervised alternate weekends in the mother’s care.

   [1]Taybor & Anderson (No. 2) [2009] FamCA 923.

3. In October 2010 the mother filed an Initiating Application seeking to revisit final parenting orders. For reasons which are not presently relevant that application was not heard until November 2013 and on 24 January 2014[2] (“the January 2014 judgment”) the mother’s application to reopen the parenting proceedings was dismissed.  The mother was also ordered to pay the costs of the ICL and the father in those proceedings and the mother was required to seek and obtain the leave of the Court to file any further application in respect of the child prior to the child turning 11.

   [2]Anderson & Taybor [2014] FamCA 23.

4. On 16 January 2017 the father filed an Initiating Application seeking variation of the September 2009 order that he be restrained from removing the child from Australia. The father subsequently withdrew this Initiating Application in circumstances that will be explained later in these Reasons.

5. On 8 March 2017 the mother filed a Response to the father’s Initiating Application seeking substantial variation to the September 2009 orders. The father sought that the mother’s application for new parenting orders be subject to a determination of whether there had been a significant change in circumstances such that it is in the child’s best interests that the proceedings be reopened. This judgment is concerned with that issue.  

Background

1. The background to this matter and the relevant parenting orders are set out in detail in the January 2014 judgment. Paragraphs [2] to [25] and [33] to [48] of that judgment are extracted below:

   2. This application concerns E (“the child”), who is almost nine years old.  The child’s parents, Ms Anderson (“the mother”) and Mr Taybor (“the father”) had a relationship in which they lived together from the end of 2004.  In 2005, the child was born.

   3. In July 2008, when the child was three and a half, she was taken by her mother to Country B in Europe, the mother’s country of origin, without the father’s consent or knowledge.  Legal proceedings were commenced in Country B in July 2008, and in March 2009, the father recovered the child in Country B and returned to Australia with her. 

   4. On 4 September 2009, final parenting Orders (“the parenting Orders”) were made, following a contested hearing of several days (“the parenting hearing”). 

   5. On 15 October 2010, the mother filed an Initiating Application to have the parenting Orders revisited.  The mother proposes in that application to significantly change the parenting Orders.  The father opposes the mother’s application and seeks orders that the application be dismissed and that the mother pay his costs on an indemnity basis.

   6. Being an application to amend final parenting Orders, the question for me to determine is whether there has been a sufficient change in circumstances such that it is in the child’s best interests for the proceedings to be reopened.

   Background

   7. The father was born in 1958 in Country A in Europe and came to Australia when he was 11 years of age.  The mother was born in Country B in Europe in 1974 and came to Australia in about 2003.

   8. In early 2004, the mother and the father met and formed a relationship with the mother moving into the father’s home towards the end of 2004. 

   9. In 2005, the child was born.

   10. The mother visited Country B with the child three times in 2006 and 2007 and the family also visited Country A to meet members of the extended family.  There was a further trip to Country B with the mother and child in early 2008.

   11. On 17 July 2008, the mother travelled to Country B with the child, without the father’s consent or knowledge.

   12. On 27 July 2008, the father received an email from the mother that she would be coming back to Australia but not before 15 October 2008.  This did not eventuate. 

   13. Later in July 2008, an application was made for the child to be returned under the Hague Convention.

   14. Although indicating there was some prospect of the father being able to see the child in Country B, the mother refused the father having access to the child in Country B when he travelled there.

   15. On 6 November 2008, Orders were made in the Family Court for the parents to have equal shared parental responsibility for the child.

   16. On 10 November 2008, the Country B Court determined that the mother was to return the child to Australia within six weeks and if she failed the father would be eligible to do so at the mother’s expense.  The mother lodged an appeal against this decision in December 2008.

   17. In January 2009, the mother’s appeal was heard in Country B and was dismissed.  The mother went into hiding with the child in Country B and the Country B authorities appeared to be unwilling or unable to assist in the child’s recovery.

   18. In mid-March 2009, the father located the child, took her from the mother at a shopping centre and returned with her to Australia.

   19. There were proceedings in the Family Court upon the father and child’s return, with a number of Court events in March and April 2009.

   20. On 2 April 2009, interim Orders were made by the Family Court for the mother to have supervised time with the child, but on the first occasion that occurred, the mother made an immediate complaint to the police that the child had been sexually assaulted by the father.  This resulted in the father being taken into custody for the purposes of a police interview and the child being taken to a police station for the purpose of being interviewed, though she was subsequently returned to the father.  The Department of Community Services (as it then was) expressed concern that the child was coached by the mother in respect of allegations against the father.

   21. When the matter was back before the Family Court on 6 April 2009, an order was made for the child’s interests to be represented by an Independent Children’s Lawyer.  On 28 April 2009 an order was made that the mother’s time with the child be supervised. 

   22. The final parenting Orders were made on 4 September 2009 following the parenting hearing of four days in duration, at which time the mother was legally represented.

   23. Since the parenting Orders were made, the child has lived with her father and spent time with her mother.  The father has sole parental responsibility pursuant to the parenting Orders.  Under those Orders, the child spent time with the mother for two and a half hours each Friday afternoon, for four hours each alternate Saturday afternoon and for four hours each other Sunday afternoon until she turned eight.  Each of these periods of time were supervised and occurred at a contact centre.

   24. Since the child has turned eight (February 2013), pursuant to the parenting Orders, she spends supervised time with her mother each Saturday for such time as the contact centre can facilitate.  When the child turns 11 years of age she will spend unsupervised time with her mother each alternate weekend. 

   25. On 15 October 2010, the mother filed an Initiating Application seeking orders that the parents share parental responsibility equally for the child, that the child live with the mother and spend time with the father five days each fortnight.

   …

   4 September 2009 – The Parenting Orders

   33. At the parenting hearing, which resulted in the parenting Orders of 4 September 2009, the then Applicant father and the Independent Children’s Lawyer sought similar orders for the child to live with the father and spend very limited and supervised time with the mother, whilst the mother sought an order that the child live with her and spend alternate weekends with the father.

   34. The father’s case, as revealed in Collier J’s Reasons for Judgment of 4 September 2009, was that the mother had a poor relationship with the child and did not appreciate, nor understand, the responsibilities of parenthood.  It was his case that the mother sought and continued at the time of the hearing to seek to alienate the child from him and had made allegations concerning him sexually abusing the child in a manner that the mother knew to be unfounded.  The father’s case was that these allegations of sexual abuse pre-dated the return of the child to Australia and included articles that had appeared on the internet in which the father was described as a paedophile.  His case also was that the mother was at that stage intending to, and would if given the opportunity, remove the child from Australia and return with her to Country B.

   35. The mother’s case at the hearing was that the father was not a suitable person to care for the child.  She asserted that prior to her leaving Australia with the child the father was violent and that she lived in extreme fear of him and continued to do so in Country B, and this was her reason for not returning to Australia in breach of Court Orders.  She also asserted that the father drank heavily and was a poor and dangerous driver.  It was also mentioned in the hearing that the father had been involved in misconduct involving a Local Government authority and the mother appeared to assert that the father, knowing that he might face some punishment, was seeking to have the child live with him in an effort to minimise any sentence that might be imposed upon him.

   36. At the hearing, affidavits of nine witnesses and the expert were relied upon but the father, the mother, Dr Q (“the doctor”) and Mr Y (who was providing rent-free accommodation for the mother at the time of the hearing and into the foreseeable future) only were required for cross-examination.

   37. The doctor was described by Collier J as being cross-examined “at some considerable length” by the mother’s counsel, who indicated to the doctor that he was challenging her report.  The mother’s counsel submitted to Collier J that his Honour would have real concerns about accepting the doctor’s report, her views and her recommendations and, particularly, referred to flaws in the doctor’s methodology.  His Honour considered these submissions and was not satisfied of their merit and concluded that the observations and opinions of the doctor were soundly factually-based and accepted her diagnosis.  The evidence of the doctor appeared to play a significant part in his Honour’s Reasons for Judgment.

   38. His Honour considered what he described as “allegations, suggestions and under-currents” that the father had in some way been involved in paedophilia, including the time prior to April 2009, and was satisfied that the mother was determined from when the child first spent time with her following her the return from Country B to make an allegation in a last ditch attempt to have the father proven unworthy or unsuitable to care for the child so she would be returned to her.  His Honour also considered the issue of violence and was satisfied that there had been no violence by the father towards the mother in the course of their association.  His Honour considered the father’s driving and described it as a matter that caused him real concern but did not find it to be a disqualifying factor in relation to the care of the child.  His Honour also considered the father’s drinking and, whilst he had some concerns, it was not as such to indicate that he was not an appropriate carer for his child.

   39. In his Reasons for Judgment, when applying the s 60CC considerations to the facts, his Honour had particular regard to the evidence regarding willingness and ability of each of the child’s parents to facilitate an ongoing relationship with the other.  His Honour was particularly concerned about the mother’s determination against the child and father having a relationship and her lack of willingness to facilitate and encourage a relationship between the child and the father.  His Honour was satisfied she would not in the future, despite her protestations, change that view.  His Honour was also particularly concerned with the likely effect of any change in the child’s circumstances, which he described as a stark choice in this matter.  His Honour described the dramatic change of returning the child to the mother as also involving separating the child from her father, who she had lived with for a period of time and in a situation to which she had clearly made a good adjustment.  Further, his Honour considered that placing the child back in the mother’s care would potentially expose her to the matters he identified that stemmed directly from the mother’s attitude towards the father, the effect of which he described as potentially catastrophic.  His Honour was satisfied that the child would be devastated if the mother were able to exclude the father from her life.

   40. Another area of particular concern for his Honour was the capacity of the mother to provide for the needs of the child.  Although his Honour concluded that clearly each parent had the capacity to care for the child on a day-to-day basis, he had concern for the emotional needs of the child and, in particular, the mother’s failure to see the harm that was perpetrated by removing the child from her father and not allowing the child to see her father in Country B.  His Honour was satisfied that the mother would endeavour to undermine the child’s relationship with the father to the greatest extent possible.

   41. In considering the presumption of equal shared parental responsibility, his Honour found that it would be highly improbable that the parties could establish the level of communication that would be required to co-parent the child and also found that the absence of trust on both sides was a relevant factor in this regard.  His Honour was satisfied that there was clear evidence to indicate that it would not be in the child’s best interests to require the parties to have equal shared parental responsibility.

   42. His Honour’s conclusion was that the child must live with the father for the medium and long-term future.  His Honour gave “considerable thought” to the mother’s submission that there might be some utility in making interim orders leading to a change at an appropriate future time, but came to the conclusion that he could make orders of a final nature that would provide the best opportunity for both parents to be involved in the child’s life, and made particular reference to a regime to cover the situation many years into the future.

   43. In relation to his Honour’s findings concerning the willingness of the mother to facilitate and encourage a relationship between the child and the father, the likely effect of any change in the child’s circumstances and the capacity of the mother to provide for the emotional needs of the child, his Honour appears to have placed considerable weight upon Dr Q’s opinion.

   44. The doctor found that the child’s history was one of a primary attachment relationship with the mother from birth and, in the absence of other factors, her needs would best be served by returning to the primary care of her mother and having regular contact with her father.  However, in the doctor’s opinion there were a number of factors that weighed against this, including that the child was very settled with her father and there were risks in up-rooting her, that the mother possibly remained a flight risk and that the determined campaign in Country B to vilify the father supported the father’s view that the mother would stop at nothing.  The doctor regarded the mother’s presentation as “superficial and contradictory” and concluded it was difficult to have confidence in what she says.

   45. The doctor said there was reason to be concerned about the mother’s capacity to meet the child’s emotional and psychological needs.  The doctor found that, although she was well able, physically and intellectually, to provide for the child, she did not show a strong child-focus and her capacity for empathic sensitivity to the child was limited.  On the basis of the clinical interview, the doctor said there was sufficient observable disturbance to suggest a clinically significant personality disorder, cluster B type with predominantly histrionic and narcissistic features.  She noted that testing that was carried out in County B also suggested such features, although that assessment was short of a clinical disorder.

   46. The doctor said that the importance was not so much the precise categorisation of the personality disorder, but the degree to which clinical disturbance affected parenting functions and said that in this case there was considerable impact on parenting.

   47. Significantly, the doctor said that whilst there may be some benefit in the mother receiving counselling, it is unlikely that much alteration of personality style could be achieved except over a period of some years, being too long a period to influence her parenting capacity during the child’s critical development years.  She said it may be preferable that the mother receive counselling aimed at heightening her awareness of the child’s emotional and psychological needs.

   48. The doctor also said that whilst the mother’s attitude to the child has been quite caring in many ways, she clearly has not accepted the importance of the father in the child’s life and sought to eliminate him and showed little regard for the importance of the father in the child’s development.  The mother gave the doctor the impression that given the opportunity the mother would seek to alienate the child from her father and, for this reason, there were concerns about a transition to unsupervised contact.  The doctor recommended that the child continue living with the father and have a strict regime of gradually increasing time with her mother over a period of years, beginning with supervised time.

The first application to revisit the parenting orders – January 2014 judgment

1. In the January 2014 judgment I determined that the mother had not proved there had been a change in circumstances such that it was in the child’s best interests for her parenting arrangements to be reconsidered by the court and the mother’s application was dismissed. The reasons for dismissing the mother’s application are set out in paragraphs [75] to [83] of that judgment and extracted below:

   75. In this case the parenting decision was based to a great extent upon the evidence of the psychiatric expert, Dr Q.  It is clear from the Reasons for Judgment that the mother had suitable skills to care for the child on a day-to-day basis and that the child was closely and securely attached to her.  There was no criticism of the mother’s employment status or accommodation in terms of her capacity to provide for the child’s needs, nor was there a criticism of her practical parenting skills.  Accordingly, the evidence concerning the mother’s current employment, accommodation and having completed a parenting course in 2010 does not amount to a change in circumstances.

   76. Similarly, the evidence relating to the mother’s psychological functioning does not, in my view, amount to a change of circumstances.  Firstly, and of greatest significance, the mother does not assert or contend that she has received psychological treatment for her personality disorder and the psychologists upon whom she has attended do not purport to hold the appropriate expertise to treat this disorder.  Moreover, the psychologist’s report, which was obtained by the mother without the psychologist having the benefit of any collateral evidence, suggests that the mother does not and did not suffer from a personality disorder, and it is clear that the mother is endeavouring to challenge the original diagnosis upon which the parenting Orders were made.  The mother is not, in fact, contending that any circumstances have changed.  As is clear from the Reasons for Judgment the mother was legally represented at the parenting proceedings, her counsel challenged the doctor’s evidence strenuously and extensively cross-examined the doctor upon it but his Honour accepted the doctor’s evidence and it was central to his decision.

   77. As is clear from the uncontested facts, to successfully contend that circumstances have changed, the mother is well aware that she needs to demonstrate that she accepted the diagnosis of a personality disorder and has been treated for it by a suitably qualified psychiatrist.  A challenge to critical evidence does not amount to changed circumstances and cannot be permitted to re-litigate that issue years after the decision was made.

   78. So far as the mother’s allegations of unsuitable and inadequate parenting by the father are concerned, they amount, in my view, to little more than mere allegations unsupported by any evidence.  There is no evidence in the mother’s application to establish even a prima facie case of changed circumstances, which the Full Court in Miller & Harrington[3] said was an appropriate formulation of what it is that an applicant is required to establish. 

   79. Although some of the contact centre reports reveal that occasionally the child complains of arguments with her father and the father agrees that on occasion he disciplines the child, there is no prima facie case that the father uses inappropriate physical discipline or verbally abuses the child.  There is also no evidence that he fails to provide for her financially or neglects her medical or hygiene needs.  There is, however, some concern that the child had a number of unexplained absences from school, especially in 2011.  However, as these unexplained absences significantly decreased in 2012 and there is no evidence to suggest that this is a current problem, and in light of the current evidence of very high academic performance, this issue alone, in all of the circumstances in my view is not sufficient to result in a revisiting of the parenting Orders.

   80. The mother’s evidence that she provides additional meals at the contact centre for the child to take home as the father is not feeding her adequately, together with the photographs from the contact centre and letters of support from contact centre supervisors, appear to be an attempt at demonstrating the mother’s superiority as a parent.  In the parenting proceedings, the mother also contrasted the father’s inadequacy to her own superiority as a parent, albeit in relation to different parenting issues.  The underlying contention is the same as was considered in the parenting hearing and was not particularly significant, in any event, in the sense that each parent was found to have suitable skills to care for the child on a day-to-day basis.  Accordingly, I find that these matters do not establish the mother’s case at a prima facie level and, in any event, would not amount to changed circumstances in this matter to warrant re-litigation.

   81. Finally, the general contention of the mother about having been unfairly treated in the proceedings and the impact that has had upon the mother psychologically and financially could not be in any way considered as changed circumstances such that it is in the child’s best interest to have the matters re-litigated.

   82. It is my view that the matters upon which the mother’s application is based do not amount to a change in circumstances.  Further, whilst the mother’s personality disorder remains untreated, there is little likelihood of the parenting Orders being varied in the significant way that the mother seeks even if there were to be a new hearing.  It is unlikely, in my view, that there would be any variation in the Orders considering that they provide for a developing regime of the child’s time with the mother, which has occurred, apparently successfully, over the past four years.  There are some indications that the child may be aware of the mother’s application in circumstances where she has had to manage ongoing litigation between her parents, and at times significant disruption for over half her life.  In these circumstances, any possibility of a minor change to the orders is out-weighed by the potential detriment to the child caused by the litigation itself.

   83. Accordingly, having found that there is no changed circumstance to justify entertaining this application, the application must fail and is dismissed.

   [3] (2008) FLC 93-383

Events following January 2014

1. In the almost four years following the January 2014 judgment the mother has spent time with the child substantially in accordance with the September 2009 orders.  Other events and circumstances relevant to this application are as follows.

2. On 14 February 2014 the father was found guilty in a Local Court of assaulting his niece by slapping her to the face. A final Apprehended Violence Order (“AVO”) was made against him for the protection of the victim for 12 months. The offence in question occurred on 29 January 2014.  

3. In early 2014 the mother began a relationship with her current partner, Mr F, who is also the mother’s solicitor in the proceedings. The mother has formed a relationship with her partner’s three children who live with him and his young granddaughter for whom he also has parental responsibility.

4. From mid-2014 the father began permitting the mother to spend time with the child unsupervised in addition to the supervised time provided for in the September 2009 orders. Although there is a dispute about the extent of this additional unsupervised time, the father does not dispute that he permitted this to happen but says that it did not occur regularly. 

5. On 24 September 2015 the contact service terminated the supervised contact for the family due to “[the mother’s] ongoing contact with the other parent outside the centre”. After that occurred the mother’s time with the child was no longer supervised. Initially the parties agreed that this time would occur every Saturday for three hours and there is some suggestion that the child may also have spent three hours in the afternoon after school with the mother one day per week.

6. From February 2016, when the child turned 11, she has spent alternate weekends in the mother’s care on an unsupervised basis.

7. At the end of March 2016 the mother began receiving psychological treatment from Mr H (“the psychologist”).

8. In June 2016 the father enrolled the child in dancing classes after school on a Friday without first consulting the mother. The classes take place between 6pm and 8pm during the mother’s time with the child. Text message interchanges between the parties annexed to the mother’s affidavit indicate that when the mother raised concerns about this activity occurring during her time with the child the father became abusive towards her, referring to the mother as a “bitch” and in one message he says “You will die an idiot!!”.

9. From about mid-2016 it appears that the father was attempting to have the mother sign a passport application for the child but this did not eventuate.  

10. The father filed an Initiating Application on 16 January 2017 seeking to vary the September 2009 parenting orders to enable him to take the child overseas on a holiday.  

11. Due to the specific and limited compass of the father’s application the matter was transferred to the Federal Circuit Court by a Registrar on 14 February 2017.

12. On 8 March 2017 the mother filed a Response to the father’s Initiating Application seeking orders in summary that the parties equally share parental responsibility for the child and the child live in a week about arrangement with both parents. As these orders sought a substantial variation of the parenting orders currently in place the matter was transferred back to the Family Court on 22 March 2017.

13. On 12 May 2017 the mother filed an Application in a Case seeking various orders including that the father resume facilitating her time with the child and the child spend half the school holidays with her. The Registrar refused to grant this application a short notice hearing.

14. Three days later the mother filed a Contravention Application alleging that the father had withheld the child from spending time with her on numerous occasions in April and May 2017. On that same date the mother filed another Application in a Case seeking that the Registrar’s decision not to grant the her Application in a Case filed 12 May an urgent listing date be reviewed.

15. In June 2017 the mother completed two parenting programs being “Tuning into Teens” and “Circle of Security Parenting”.

16. On 14 June 2017 the mother’s Contravention Application was listed for hearing before Foster J on 19 July 2017. The substantive parenting proceedings were transferred to me. I made directions for the matter to be prepared for trial and it was noted that the mother’s application to revisit final parenting orders was to be subject to a separate hearing to determine the Rice & Asplund[4] threshold issue.

    [4] [1979] FLC 90-725.

17. On 1 September 2017 Foster J dismissed the mother’s Application for Contravention on the basis that the order with respect to the mother’s time alleged to have been contravened was unenforceable as it was indeterminate in time as to its operation.[5] 

    [5]Anderson & Taybor [2017] FamCA 698.

18. On 28 September 2018 the matter was before me for hearing as to the threshold issue in respect to the mother’s application for parenting orders.  All of the other applications brought by the parties were withdrawn other than the mother’s application to revisit the parenting proceedings under consideration in this judgment.

19. It is against this background that I now consider the mother’s application.  

The present application

1. In her Response filed 8 March 2017 the mother sought orders that the parties equally share parental responsibility for the child and the child live in a “week about” arrangement with the parents during the school term. In the course of oral argument it became clear that the mother was not seeking to revisit parental responsibility for the child but was seeking orders that would see the child spend substantial and significant time with her.   

2. Following the conclusion of the threshold hearing on 28 September 2017 the mother provided to chambers as ordered a copy of her amended proposed orders. The proposed minute was in line with the changes that had emerged in the mother’s proposal in the course of oral argument on 29 September.  The mother seeks to revisit the final parenting applications as follows:

   ·Increasing her time with the child from three nights each alternate weekend during the school term to five nights each fortnight being from after school Thursday until before school Monday on each alternate week and overnight Thursday on each other week in that period.

   ·That she spend time with the child for half of each school holiday period and on special occasions being Mother’s Day, the child’s birthday, Easter and Christmas and other orders in relation to changeover and a prohibition on enrolling the child in an extra-curricular activity during the time the child normally spends time with the other parent without that parents written consent.

   ·That the order giving the father liberty to suspend her time with the child for a period of up to four weeks each year and restraining her from attending or communicating by any means with the child’s school or parents or carers at that school be discharged and an order made giving her liberty to attend at school events and extra-curricular activities to which a parent normally attends. 

   ·Specific orders concerning notice to the other parent in relation to medical matters and other orders in relation to receiving documents from the school, a non-denigration order and an order with respect to notification if a party intends to remove the child from the Sydney Metropolitan area for greater than 24 consecutive hours.

3. In her affidavit filed 23 June 2017 the mother deposes to the child having spent alternate weekends in her care for over 12 months and often spending further time with her during the week by agreement with the father. She further deposes to the child having expressed a desire to spend equal time with both her parents. The mother deposes to the child being mature for her age, 12 years, and says that her views should be considered a change in circumstances.

4. The mother further deposes to having accepted the diagnosis of a personality disorder by the expert in the parenting proceedings and that she has received treatment from her psychologist for over 12 months. Annexed to the mother’s affidavit is a psychological treatment report dated 26 April 2017 completed by Mr H.

5. The mother also deposes to having completed two parenting programs: Circle of Security and Tuning into Teens: Emotionally Intelligent Parenting. The mother says she has completed these courses in repose to the expert’s criticism of her lack of awareness of the child’s emotional and psychological needs.

6. Finally the mother deposes to the father behaving in a violent, aggressive and racist manner towards her, the child and her new partner, Mr F.

7. It is on these bases that the mother argues there has been a sufficient change in circumstances to justify the reopening of parenting proceedings.

8. The father opposes the mother’s application substantially on the basis that she has not provided sufficient evidence of any change in her mental health and that the mother’s behaviour towards him and the child has not changed sufficiently to be a change in circumstances sufficient to justify the reopening of the parenting proceedings. 

The Law & Discussion

1. As is clear from Full Court decisions, such as Prewett & Mann[6], there is no doubt that the principles established in Rice & Asplund[7] and the subsequent line of authority apply to proceedings such as these where a party is seeking to have final parenting orders reconsidered.

   [6] [2013] FamCAFC 130

   [7] (1979) FLC 90-725

2. The so-called “rule in Rice & Asplund” arises from remarks made by Evatt CJ in that case at [78,905-06]:

   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 for change in an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant … 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 …

   Evatt CJ continued:

   These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.  These principles apply whether the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

3. As further explained in Prewett & Mann (supra) at [9]:

   The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).

4. The way in which the rule is to be applied was set out by the Full Court in Marsden & Winch[8], where it was said at [50]:

   … 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.

   [8] [2009] FamCAFC 152

5. As the Full Court said in Miller & Harrington[9], what is required for the applicant to establish is a prima facie case of changed circumstances.

   [9] (2008) FLC 93-383

The reasons for the parenting decision and evidence upon which it was based

1. The reasons for the parenting decision and the evidence upon which it was based is set out in detail under the heading “The parenting orders – 4 September 2009” at pages five to eight in this judgment. It is clear from that summary of the final parenting orders and the evidence upon which they were based that the evidence of the expert psychiatrist played a significant part in his Honour’s Reasons for judgment. This evidence formed the basis of his Honour’s conclusions about the willingness of the mother to facilitate and encourage a relationship between the child and the father, the likely effect of any change in the child’s circumstances and the capacity of the mother to provide for the emotional needs of the child, all of which were significant matters in His Honour’s judgment.

Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing

1. On the last occasion that the mother sought to reopen the parenting proceedings there was little likelihood that the orders would be varied in a significant way if there were a new hearing.  At that stage the mother was not asserting that she had received psychological treatment for the personality disorder identified by the expert but sought to challenge the expert’s report.  In other words she had not accepted the opinion of the psychiatric expert upon which the trial judge attached great weight so the likelihood of orders being varied should the proceedings be reopened was low. 

1. In these proceedings however, if I am satisfied as to the matters the mother contends I may conclude that there is a likelihood of the orders being varied in a significant way if the parenting arrangements for the child were to be revisited. 

2. I will now consider each of the changed circumstances contended for by the mother to determine whether there is a likelihood of orders being varied in a significant way as a result of a new hearing.

The determination by Foster J regarding the unenforceability of Order (17)

1. On 1 September 2017 Foster J considered the mother’s Contravention Application that contended that the father contravened the parenting orders on five occasions between April and June 2017 resulting in the mother not spending time with the child. In each case the mother had contended that at a particular time and place the father “refused to allow the mother to spend time with the child”. His Honour approached the matter by first considering whether he was satisfied that the father had failed to comply with a Court order.

2. The particular order in question, Order (17) is as follows:

   That as and from the time the child attains the age of eleven years, the mother shall spend unsupervised time with the child each alternate weekend from after school Friday to before school Monday.

3. As his Honour noted the Order does not provide when the alternate weekend time is to start and that the father could only be held responsible for a breach of a court order as to making the child available to the mother at a specified time. His Honour concluded:

   Regrettably, there is no evidence to suggest that the order itself, that is, order 17 made in 2009 requires the father to make the child available to the mother on Friday, 21 April 2017 and, hence, on each alternate Friday thereafter, as alleged by her. In the absence of evidence as to a breach of the court order as it is framed, and it needs amendment, the Court cannot be satisfied that there is a prima facie case established on the mother’s application … (emphasis added)

4. One of the orders that the mother wishes to be varied is order 17.  The variation she proposes is far more significant than the amendment that is required to make the order enforceable. It could be considered that the amendment needed so that the order is enforceable is significant in that it will ensure that the mother spends time with the child in accordance with the regime of parenting orders intended to be implemented in the final parenting orders rather than run the risk that from time to time the child does not receive the benefit of that time. 

The mother’s “personal growth”

1. Under the description of “personal growth” in the mother’s case outline and oral submissions made on her behalf, the mother relies upon the following:

   ·Her engagement with the psychologist,

   ·Her stability in a relationship since 2014,

   ·Her recognition of “the importance of the father and her regret for past action”,

   ·Her stability in employment

   ·She has been spending time over each alternate weekend with the child including unsupervised time from Friday to Monday,

2. It is submitted on her behalf that all of these matters indicated that there has been a substantial change in her circumstances sufficient a revisit of the final parenting orders. 

3. So far as the mother’s engagement with the psychologist is concerned, it is the tenor of the father’s submissions that this engagement is effectively no different to the mother’s position in the last proceedings when she sought to reopen the parenting proceedings.  In those proceedings I expressed the following:

   77. As is clear from the uncontested facts, to successfully contend that circumstances have changed, the mother is well aware that she needs to demonstrate that she accepted the diagnosis of a personality disorder and has been treated for it by a suitably qualified psychiatrist.  A challenge to critical evidence does not amount to changed circumstances and cannot be permitted to re-litigate that issue years after the decision was made.

4. At [82] I also said the following:

   It is my view that the matters upon which the mother’s application is based do not amount to a change in circumstances.  Further, whilst the mother’s personality disorder remains untreated, there is little likelihood of the parenting Orders being varied in the significant way that the mother seeks even if there were to be a new hearing.

5. In my view, the mother’s current application is based upon quite different circumstances.  First, she says that she has come to understand and accept the diagnosis of the expert and the report from her clinical psychologist dated 26 April 2017 annexed to her affidavit makes it clear that the psychologist approached treatment of the mother on this basis.  Unlike the psychologist the mother engaged with in the previous attempt to reopen the proceedings, the psychologist was provided with the Reasons for Judgment with respect to the final parenting orders and the expert’s report as well as my Reasons for Judgment from January 2014. 

6. Although it is clear from the psychologist’s report that initially in October 2015 the mother had sought to be reassessed and the psychologist was asked whether he agreed with the previous expert’s diagnosis, the psychologist approached his therapy with the mother on the basis of addressing the concerns raised by the expert in the parenting proceedings. The psychologist noted many consistencies with the personality concerns identified by the expert and the mother’s presentation and worked with her on addressing those matters in therapy. 

7. In his report the psychologist expressed the following opinions:

   In reviewing background material in the context of [the mother]’s current profile it became apparent that [the mother] has matured significantly since [the expert]’s assessment in 2009…

   This is important in that it provides substantive evidence that some of the more concerning features of narcissistic and histrionic behaviours that [the expert] identified have ameliorated over the intervening period from 2009 to the present, inclusive of her therapy program.

8. In addressing the specific questions raised by the mother’s instructing solicitor with respect to the expert’s diagnosis, the psychologist noted that the expert did not indicate that the mother “suffers from a personality disorder”. The expert had observed sufficient disturbance to suggest a clinically significant personality disorder but that the issue of significance is “the degree to which clinical disturbance affects parenting functions” which in the opinion of the expert in this case showed “considerable impact on parenting”.  The psychologist concurred with the expert that the mother’s profile does suggest elevated features of both personality disorders but in his view fell short of a clinical disorder.  As indicated the psychologist addressed these matters of concern in therapy with the mother.

9. The psychologist’s diagnosis is similar to that postulated by the expert in that in the psychologist’s opinion the mother showed elevated features of a Cluster B Personality Disorder, though in his view of insufficient severity to meet full diagnostic criteria. 

10. In relation to “treatment” of the concerning features of the mother’s personality the psychologist noted that almost eight years has elapsed since the expert’s report which in his view is a period sufficient to be able to assess alteration of personality style.  With respect to this matter he expressed the following opinion:

    Acknowledging the limits of my intervention to date, and that I have had no contact with [the child] or her father, it would still be reasonable to suggest that [the child] has established a close relationship with her father that would likely be considered secure and self-sustaining.  [The child] is now of an age where she could not just express her views, but would be considered by the court as being capable of instructing counsel.  Given [the child]’s age now, and the small amount of time she spends with her mother, any possible effort expended by the mother in purported alienating behaviour would likely achieve the reverse results, that is “pushing” [the child] away from herself and driving her more toward her primary attachment, her father.  Separate but related to this issue, is that there is now robust research evidence that older-aged children and early adolescents if given a say, consistently express a desire for greater flexibility in the nature of the care arrangements they have had, and equally importantly express the desire for greater agency in the process for their voices to be heard effectively.

    Finally, [the expert] suggested that [the mother] receive counselling aimed at heightening her awareness of the child’s emotional and psychological needs.  As a clinician of long-standing with the Family Law Court (sic) and Federal Circuit Courts, I can indicate with much surety, my unwavering focus on the best interests of the child and that all of my family intervention work – much of it referred directly from the bench – is dedicated to assisting parents achieve greater insight into the harm they risk doing to their children in the single-minded pursuit of ego-centric goals.  In line with that, I can confirm to the court that [the mother] has actively participated in and continues with an ongoing program of challenging and often-times highly confrontational therapy combined with an extensive amount of inter-session activities of leading and additional parenting skill development.

11. In addition to approaching the therapeutic task on a different basis to that which occurred on the last occasion the mother sought to re-open the proceedings, the psychologist engaged with the mother is also an appropriately qualified expert to undertake this therapy.  For the purposes of this application, although the psychologist’s opinion is not tested I attach significant weight to it. 

The age of the child and her views

1. As touched upon when setting out the opinion of the psychologist in relation to the mother’s therapy another matter of some significance is the age of the child and that her views should be given some weight. 

2. When the child’s parenting arrangements were last considered by a court the child was four years old and there were significant issues of risk posed by her mother and as a result no weight was attached to any view that she may have expressed at the time.

3. The child is now much older and the issues of risk posed by the mother may well have been mitigated. As the mother is not now seeking to change the exercise of parental responsibility or the child’s principal home it may be that a court would attach some weight to the child’s views about the arrangements for time with her mother. 

The father’s conduct

1. The mother has made allegations concerning aspects of the father’s conduct and parenting skills in the previous proceedings and continues to make allegations that are not dissimilar in nature.  As the mother does not seek to change parental responsibility or the child’s principal residence with the father, this issue attracts the least weight in this application.

Discussion

1. I am of the view that significant weight should be attached to the fact that the mother does not now essentially challenge the opinion of the psychiatric expert but has instead sought to address the matters of concern raised by the expert with an appropriately qualified psychologist.  That psychologist has expressed the view that the mother has matured significantly and has a greater understanding of the matters of concern raised by the psychiatric expert and has gone some way in addressing those matters of concern. 

2. The mother’s psychologist also expresses the view (which for the reasons given I accept) that the age of the child and expression of her views are significant matters. 

3. The difficulties with enforcing the orders with respect to the mother’s time with the child also must attach some weight. 

Weighing the likely changes against the detriment caused by litigation

1. The changes that the mother seeks to the parenting arrangement could not be regarded as so small to not have sufficient benefit to compensate for the disruption to the child caused by significant re-litigation. 

2. The changes the mother proposes would result in the child spending substantial and significant time with her which the child does not now receive.  On the other hand the mother does not seek to make major disruptions in the child’s life such as seeking that the child live with her principally or in an equal time relationship or seek a change in parental responsibility.

3. In my view, the evidence of the mother particularly in relation to the steps she has taken to improve her “personal growth” for the benefit of the child, the age of the child and her views and the unenforceability of the current orders with respect to the mother’s time would likely result in the orders being varied in a significant way in a new hearing. The nature of the likely changes may have sufficient benefit to outweigh the potential detriment to the child caused by the litigation itself. 

4. In these circumstances I am of the view that there has been a sufficient change in the child’s circumstances such that it is in her best interests for the parenting proceedings to be revisited.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 December 2017.

Legal Associate: 

Date:  21 December 2017