Vargas & Clarke
[2021] FCCA 1950
•30 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Vargas & Clarke [2021] FCCA 1950
File number(s): BRC 10951 of 2011 Judgment of: JUDGE LAPTHORN Date of judgment: 30 August 2021 Catchwords: FAMILY LAW – parenting – application to vary final orders – consideration of Rice & Asplund – consideration of loner term supervision – application to restrain a party from bringing further proceedings Legislation: Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA, 65DAC, 102Q, 102QB
Evidence Act 1995 (Cth), s 140
Cases cited: B & B [1988] FLC 91-957
Bennett& Bennett (1991) FLC 92-191
Betros & Betros [2017] FamCAFC 90
Champness v Hanson (2009) FLC 93-407
D & Y (1995) FLC 92-581
Donaghey & Donaghey [2011] FamCA 13
Fitzpatrick & Fitzpatrick [2005] FamCA 394; (2005) FLC 93-227
George & Nichols [2016] FamCA 519
Godfrey v Sanders [2007] FamCA 102
Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
Harridge & Harridge [2010] FamCA 445
Heath & Hemming (No. 2) [2011] FamCA 749
King and Finneran [2001] FamCA 344
M v M [1988] FLC 91-979
M v S (2007) FLC 93-313
Marsden and Winch [2009] FamCAFC 152
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375
MRR v GR [2010] HCA 4
Rice & Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570
Rilak & Tsocas [2020] FamCA49
Searson & Searson [2017] FamCAFC 119
Sigley v Evor [2011] FamCAFC 22, (2011) 44 Fam LR 439
SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16
Number of paragraphs: 100 Date of last submission/s: 8 June 2021 Date of hearing: 9, 10 and 11 February, 31 May and 8 June 2021 Place: Brisbane Solicitor for the Applicant: Sterling Law (Qld) Counsel for the Applicant: Mr Walsh Solicitor for the Respondent: Whitehead Payne Counsel for the Respondent: Ms Pendergast Solicitor for the Independent Children's Lawyer: Lyrene Wiid Lawyer & Migration Agent Counsel for the Independent Children's Lawyer: Ms Firth ORDERS
BRC 10951 of 2011
BETWEEN: MR VARGAS
Applicant
AND: MS CLARKE
Respondent
ORDER MADE BY:
JUDGE LAPTHORN
DATE OF ORDER:
30 AUGUST 2021
THE COURT ORDERS:
1.That the father’s Initiating Application filed 6 December 2018 be dismissed.
2.That the mother’s application for a restraint on the father’s ability to bring proceedings without leave of the court be dismissed.
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 under the pseudonym Vargas & Clarke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LAPTHORN:
INTRODUCTION
The parents of ten year old C, have been in dispute as to his parenting arrangements all of his life. C was only eight months old when the first application was made to the Federal Magistrates Court. There have, in total, been 33 applications filed by his parents, including five Initiating Applications, 17 Applications in a Case, 10 Applications Contravention and one Appeal.
The current operative orders were made by Bell J in the Family Court of Australia on 28 February 2014 (the 2014 orders). These orders provide for the child to live primarily with his mother and spend supervised time with his father at a contact centre in Town A. The mother has sole parental responsibility for the child. X’s father, Mr Vargas, has asked the court to make new parenting orders that would see the child live primarily with him. To succeed in his application, the father will need to establish that there has been a material change in circumstances since the making of the 2014 orders. The relevant principle is commonly referred to as the rule in Rice & Asplund.[1] A previous attempt by the father to have the 2014 orders varied was dismissed by Hogan J in 2015 and her Honour’s decision was upheld on appeal the following year.
[1] [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570
X’s mother, Ms Clarke, argued that there has not been any significant change in circumstances and opposed any change in the child’s primary residence. She wants the father’s time with X to remain supervised. She also wants Mr Vargas restrained from bringing any more applications without first getting leave of the court to do so. In the event the court was persuaded that there has been a significant change in circumstances the mother argued that the only change needed was to impose on the father the full cost of the supervision.
An Independent Children’s Lawyer (ICL) was appointed for X. She sought an order that the father’s application be dismissed on the basis that there has not been any significant change of circumstances since the making of the 2014 orders. In the alternative the ICL sought orders that would provide for the mother to have sole parental responsibility for C and for him to continue to live with the mother. She supported orders for the father’s time to be supervised at a contact centre. She did not support the mother’s application restraining the father’s ability to bring a fresh application.
Throughout these reasons I will refer to Mr Vargas as the father and Ms Clarke as the mother. I will also refer to C as the child. I mean no disrespect in doing so.
By way of brief background, the father is 60 years of age and the mother, 43. The father has a 31 year old daughter, Ms W Vargas, who has children of her own. The mother has a child S who is 15 years of age. His father died in 2007. The parties commenced a relationship in 2009 and C was born in 2011. They separated on a final basis in October of that year. After an incident between the parties in July of 2011 a family violence protection order issued naming the mother as the protected person and the father as the respondent. There are no current protection orders in place between the parties. The child has always lived with the mother and his brother.
The parties live about an hour and a half drive from each other with the father in Region LL, and the mother in Town MM. In his affidavit, the father described himself as a construction worker, but I have no evidence as to his current working arrangements. In the 2019 interviews for the family report, he told the report writer that he works as a professional for a government body, Monday to Friday. The job involved some travel and long hours. He alluded to the report writer that he does not have any financial concerns. The mother has been on a disability support pension for over 20 years. She does some training but does not earn an income from such. The father does not pay her child support and is in arrears in excess of $17,000. He does however provide supermarket gift cards to the child from time to time.
Throughout the history of the litigation the father has expressed concern for the safety of the child whilst in the mother’s care. Leading up to the 2014 proceedings before Bell J, the father had withheld the child from the mother on at least two occasions. He was concerned about the welfare of the child in the mother’s care. He believed the mother had mental health issues, was drinking alcohol to excess, and had physically harmed the child. He also claimed the mother’s other child had physically hurt C. The father would frequently take photos of the child and take him to doctors when he was spending unsupervised time with him.
C has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD) and Anxiety with Tic Disorder. His conditions are managed through medication (Ritalin 10mg) and by withdrawal from mainstream school.
The father asserted that he no longer held the view that the mother is currently physically abusing the child but was concerned about her ability to meet his needs, particularly his educational needs. C is currently being home schooled after experiencing difficulties with his behaviour at school. It is the father’s view that the child needs to live in his primary care to properly address these needs.
THE ISSUES
I respectfully accept and adopt the ICL’s submission that the issues for determination are as follows:
(a)Has there been a significant change in circumstances, which warrants a change to the final orders made 28 February 2014?
(b)If a significant change in circumstances is established:
(i)Does the father pose an unacceptable risk to the child, if he spends unsupervised time with the child?
(ii)Is it in the child's best interest to live primarily with the mother or the father?
(iii)Should the mother or the father have sole parental responsibility for the child?
(iv)What time should the child spend with the parent with whom he does not primarily reside?
The other issue for determination is the mother’s application that the father be prohibited from instituting proceedings in relation to the child without first obtaining leave of the Court.
THE EVIDENCE
In support of his application the father relied on:
(a)His Initiating Application filed 6 December 2018;
(b)His Notice of Risk filed 7 December 2018;
(c)His Affidavit filed 11 January 2021; and
(d)His Case Outline filed 29 January 2021.
The mother relied on:
(a)Her Response filed 1 March 2019;
(b)Her Notice of Risk filed 1 March 2019;
(c)Her Affidavit filed 22 December 2020; and
(d)Her Case Outline filed 5 February 2021.
The Independent Children’s lawyer relied on:
(a)The Family Report of Ms NN filed 21 August 2019;
(b)The Updated Family Report of Ms NN filed 25 September 2020; and
(c)Her Case Outline filed 5 February 2021.
Documents were also tendered into evidence.[2]
[2] Exhibit F1 Statement from Ms OO
In determining this matter, I have had regard to all the written evidence referred to above along with the oral evidence given. Both parents were cross-examined. Ms OO and Mr PP provided written statements which were received into evidence and were cross-examined. Ms OO was a teacher and Mr PP the former deputy principal at C’s previous school. The family report writer was also cross-examined. To avoid repetition and limit the length of this judgment, apart from setting an informative background, I will not repeat the evidence save that which is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore, throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[3]
[3] Section 140 Evidence Act 1995 (Cth)
I found the father to be a less than focussed witness. He was fixated on the past and was unable to look at alternative viewpoints. He struggled to answer many questions directly, preferring to give commentary rather than answering the questions asked. However, I am satisfied that was not necessarily an avoidant tactic, but indicative of his obsession with his main concerns about how the child has been cared for by the mother. This obsession appears to have impacted his ability to objectively consider what has been said or written by others. He also used language that did not necessarily fit with his position. For example, he described a former family report writer from one of his earlier proceedings as corrupt. However, it appeared that he has not made a complaint against this report writer and the reason for the allegation of corruption was his belief she did not have regard to or make enquiries as to the number of times the mother took the child to the doctor when she highlighted the number of times he took the child to the doctor and considered that the child was at risk of emotional harm in doing so.
The mother on the other hand presented as a more objective witness although at times defensive, particularly around her long-standing mental health issues and her views on vaccinations. Given the father’s unrelenting criticism of her I am not surprised. After considering all the evidence and observing the parties in the witness box, I have come to the conclusion that the mother is a better historian than the father and therefore where their evidence differed, I preferred the evidence of the mother.
In December 2011, not long after their separation in October 2011, the mother filed an Initiating Application for parenting orders. This application was dismissed in April 2012 as neither party attended court. The following month however, the father filed an Initiating Application for parenting orders. On 2 August 2012 interim orders were made for the child to live with the mother and spend alternate weekends as well as Wednesdays with the father. In February 2013 the father failed to return the child to the mother in accordance with those orders citing concerns as to the deterioration of the child’s mental state. C was not quite two years of age. The father filed an Amended Initiating Application seeking orders for sole parental responsibility, for the child to live with him and to have supervised time with the mother. The mother brought an Application for a Recovery order which was granted on 6 March 2013.
On 11 May 2013 the father took the child to a hospital after seeing bruising on him which the father believed was consistent with previous bruising he had seen on the child. In July 2013 the father again withheld the child requiring the mother to once again file for a Recovery Order. The father’s time has been supervised ever since. On 28 February 2014 Bell J made final parenting orders. The father subsequently filed an Application in a Case seeking to vary those orders but was not successful. He did not appeal the orders.
In June 2014 the mother filed an Initiating Application seeking property orders which were finalised the following month. In August 2014 just six months after the making of the final orders, the father again filed an application for parenting orders. This application was dismissed by Hogan J under the Rice & Asplund principles in April 2015. The father’s appeal against her Honour’s decision was dismissed in February 2016.
During 2015 the father filed two Contravention Applications both of which were dismissed. He filed four further Contravention Applications the following year all of which were dismissed. From August 2016 to January 2018 there were no proceedings before the courts. However, in January 2018 the father commenced these proceedings.
In his Notice of Risk filed 7 December 2018 the father alleged the mother had abused the child physically and that she has a substantial history of mental health issues, alcohol related violence, child abuse and criminal history involving drugs. In his trial affidavit however, he said that he no longer believed that the mother or any other person is physically abusing the child. However, he maintained his belief that it has happened in the past. He said he had no intention of taking the child for medical appointments to demonstrate physical abuse of the child by the mother.
In cross-examination by Counsel for the mother, the father conceded he may have told the report writer during the first family report interviews in August 2019 that the child was at risk of harm with the mother. He went on to say that he may have been taken out of context and that he had no current concerns. Notwithstanding this, in response to a question posed by me he said that still believed that the child should be removed from his mother’s primary care to live with him. His primary focus, at this point in time, appears to be his belief that the child’s educational needs are not being met in the mother’s care. In relation to the child’s education, he said in cross-examination that I would be relentless without limitation to get him back on track. He said he would employ a qualified teacher at $60 an hour to initially assess him and then tutor him. When it was put to him that the mother’s evidence was that she spends between three to five hours a day home schooling him he could not resist a dig at the mother replying: That’s her evidence but whether it is the truth or not I don’t know. When it was put to him that he would have to pay $810 a week for his planned tutoring he responded to counsel: I am happy with your mathematics, yes.
Notwithstanding he is in arrears of child support by at least $17,000 he was prepared to pay $810 for private tutoring. I note he has never offered the mother to pay for tutoring in her home. He told the report writer that he would not give money to the mother because she would use it on horse feed and alcohol. He does however provide gift cards for the local supermarket. He obfuscated in giving evidence about the arrears of child support and claimed that the mother owed him $3,700. This sum was garnisheed by the Child Support Agency from a tax refund due to the father and paid to the mother.
Although the father asserted that he no longer holds the view that the mother is physically harming the child he still holds a negative view of her ability to meet the child’s needs. His expressed attitude in the witness box was clearly negative towards the mother. I have no confidence he has changed his views of her. All he has done is shifted his focus to another aspect of parenting that he can be negative about, this time it is the child’s education.
The father did not attend the updating family report interviews in 2020. He conceded in cross-examination that he did not respond to requests to attend. He believed that he was being bullied by being asked to attend. He considered the process was designed to malign and disparage him. In the first report, prepared in 2019, the report writer noted that the father spoke extensively throughout his interview about the earlier proceedings and in particular complained that there was incontrovertible evidence of case fixing by the then report writer, Ms E. He said that the report writer and Dr F, who undertook a psychiatric assessment, were influenced by the mother and the ICL. He was also critical of an investigation conducted by Ms O from the child welfare department. He said that Ms E and Ms O should face the DPP and that their reports had resulted in C becoming another stolen generation. He went on to allege that when the child was a toddler the mother beat him to the point of amnesia. Bell J in the 2014 proceedings rejected the father’s claims.
The report writer opined that the father was motivated in seeking a change of residence in order to have access to the child so he could have him assessed by various professionals to create evidence that would validate his long-held view that the mother had abused him. The father did not provide the report writer with any information that would enable her to conclude that the child had been emotionally or physically abused or neglected by the mother. He did not provide any evidence of same to the court. I find no evidence that this child has been or is at risk of any harm in the mother’s care.
The issue of the mother’s ability to attend to the child’s educational needs will be addressed later in the judgment when I consider parental capacity.
LEGAL PRINCIPLES
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome, the Court is required to have regard to the objects and principles that underlie that part[4] and must consider the best interests of the child as the paramount consideration.[5]
[4] Section 60B
[5] Section 60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
(a)Children have a right to know and be cared for by both their parents;
(b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
(c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture.
[6] Section 60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[7] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[9]
[7] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[8] Section 61DA
[9] Section 61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[10] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[11] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[12] A major long-term issue in relation to a child means an issue:
about the care, welfare, and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[13]
[10] Section 61B
[11] Section 61C
[12] Section 65DAC
[13] Section 4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[14] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[15]
[14] Section 65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[15] Section 65DAA(2)(c) & (d)
Although the father is the applicant in these proceedings, I am asked by the mother and the ICL to dismiss the father’s application on the basis that there has not been any significant change of circumstances warranting a revisiting of the current parenting orders. This argument is known as the rule in Rice & Asplund. Although the court has the power to vary or set aside parenting orders[16], a court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing. The Full Court of the Family Court in Rice & Asplund[17] held:
[The court] should not lightly entertain an application to reverse an earlier custody order. … 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. … These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.[18]
[16] Section 64B(1)(b)
[17] [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570
[18] 6 Fam LR 570 at page 570
It is for the court to exercise its discretion in deciding whether to embark upon a full hearing of a matter or to determine the ‘threshold’ issue as a discreet point by way of preliminary determination.[19] Warnick J in SPS & PLS[20] considered the term ‘threshold’ in this context to mean:
… ‘the first question to be determined’ and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered.[21]
[19] Bennett& Bennett (1991) FLC 92-191, D & Y (1995) FLC 92-581
[20] (2008) FLC 93-363; [2008] FamCAFC 16
[21] Ibid at page 13
Collier J in King and Finneran[22] said:
To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children.[23]
[22] [2001] FamCA 344
[23] Ibid at [44]
His Honour also said:
The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection.[24]
[24] Ibid at [41]. His Honour’s reference to s.68F was to the Family Law Act as it was prior to the 2006 amendments. See s.60CC
Murphy J in the Full Court decision of Searson & Searson[25] endorsed the approach taken by Warnick J and considered a number of authorities relative to the consideration of the Rice & Asplund argument being considered as a preliminary point. It is worth repeating this analysis of these authorities:
[25] [2017] FamCAFC 119 Kent and Loughnan JJ agreed with the decision of Murphy J
[8]It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.[26]
[26] Rice & Asplund (1979) FLC 90-725; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383
[9]In the important decision of SPS & PLS,[27] (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”.[28] It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below.
[27] (2008) FLC 93-363 approved in Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383; Walter & Walter [2016] FamCAFC 56
[28] SPS at [46]
[10] In SPS, Warnick J went on to hold[29] that:
[29] at [48]
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[11] His Honour went on to say this:[30]
[30] SPS at [81]
… [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
[12]Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.[31]
[31] Rice & Asplund at 78,905 per Evatt CJ
[13] Thus, for example, Nygh J said in McEnearney & McEnearney:[32]
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
[14] To similar effect, Warnick J said in SPS:[33]
Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
[15]The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.
[32] (1980) FLC 90-866 at 75,499
[33] SPS at [58]
In Marsden and Winch[34] the Full Court[35] said:
[48] In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
[49] However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[36]
[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.
[34] [2009] FamCAFC 152
[35] Bryant CJ, Finn and Cronin JJ
[36] See for example Jennifer McIntosh ‘Enduring conflict in parental separation: Pathways of impact on child development’ (2003) 9 Journal of Family Studies 63 and Jennifer McIntosh and Richard Chisholm ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Journal of Family Studies 37.
Despite the numerous applications that have been heard over the years this matter went to a full hearing after the preparation of a family report. Nonetheless I am satisfied that the question of whether the father has established a significant change of circumstances should be determined. In SPS and PLS,[37] Warnick J said:
[72]... While I have said that the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
[73]There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
[37] (2008) FLC 93-363; [2008] FamCAFC 16
HAS THERE BEEN A MATERIAL CHANGE IN CIRCUMSTANCES?
When the orders were made in 2014 the child was about to turn three years of age. He is now aged 10. The father argued that this age difference is a relevant factor and one of the material changes in circumstances warranting a re-opening of the litigation. He also argued that the child has experienced problematic behaviour at school whilst in the mother’s care and has been removed from a school environment into home schooling. The father held the view the mother would not be able to meet the child’s educational needs and he is subject to neglect in her care.
It was submitted on the father’s behalf that he no longer held negative views of the mother or that she was currently physically abusing the child. He gave evidence that he would not take the child to different doctors. I do not accept the submission, nor do I have any confidence in the father’s assertion that he would not take the child to different doctors.
The father was unable to hide his negative views of the mother whilst giving evidence. I accept the submissions of the mother and ICL that the father has not changed his views of the mother. Indeed, he conceded that in cross-examination. He continued to express concerns as to the way the earlier proceedings had been concluded and he currently holds the view that the child is in the position he is in because of the mother. The report writer expressed the view that rather than moving on from his previously stated views of the mother the father had in fact hardened his negative views. In his affidavit he annexed child safety material and medical documents dating back to 2012 in support of his view that the child had been at risk with the mother. He clearly considered that evidence to be relevant to these proceedings. In cross-examination he said that all of the child’s current challenges could be attributed to the way he has been abused by his mother and the ongoing neglect by her. I respectfully share the view of the report writer that the father has hardened his views rather than softened them.
In the 2014 orders, the father was required to complete certain counselling. He attended upon a psychologist but it appears from his evidence he did not actually engage in any fruitful sessions of counselling. He said in cross-examination that he did not need the counselling and believed that this was confirmed by the counsellor he saw so he just went through the process of ticking the boxes.
The issue of the child’s schooling is one that has been of concern to both parents. When the father filed his application C had been suspended from school on several occasions and his schoolwork had deteriorated. The mother arranged for home schooling and has personally tutored him. This change in his schooling has seen the child’s behavioural issues settle and has led to significant improvements in his overall educational performance. The change in the child’s schooling is, in my view, insufficient to meet the criteria of a significant change of circumstances. I make this finding having regard to the mother’s evidence as to her attention to the child’s home schooling and his improved grades. The 2014 orders provided for the mother to have sole parental responsibility for the child which includes decisions about his schooling. The father’s criticism of the mother is without merit, although I am satisfied that he would have been concerned about the child’s welfare upon hearing of his suspensions and ultimate withdrawal from school. That is a legitimate concern for any parent. The problem lies in the father’s fixation that the mother is the cause of the problem and his inability to see that she has risen to the challenge, followed advice and attended to the child’s needs appropriately.
The passage of time since the making of the 2014 orders does mean that the child is now a lot older than when the earlier orders were made. That in and of itself is not a significant change of circumstance although it is a relevant consideration.
I have come to the view that there has not been a significant change of circumstances warranting a re-opening of the litigation. Given this matter has proceeded on the basis that the preliminary issue would be decided after a contested hearing, I have taken into account the relevant s.60CC factors in coming to that decision. They will be addressed below.
In the event I am wrong in that conclusion, I have also turned my mind to what would be in the child’s best interests having regard to those same factors as if I was determining this matter independent of the Rice & Asplund issue. In doing so, I have come to the conclusion that there should be no change to the current parenting orders.
DETERMINING THE BEST INTERESTS OF THE CHILD – THE S.60CC CONSIDERATIONS
The legislative framework sets out a number of considerations the court is required to assess in determining the best interests of the child. In order to limit duplication, I propose to group together these s.60CC factors thematically.
THE CHILD’S RELATIONSHIPS[38]
[38] Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
The child has been primarily cared for by his mother all his life. He has a close and loving relationship with her. Notwithstanding his time with the father has been supervised for over eight years he has a loving relationship with him. The report writer in her oral evidence said that she observed the child to delight in spending time with his father.
Long term supervision is often contra-indicated, but in this case, it has enabled the child to maintain and develop a relationship with his father. There can be no doubt however, that such an arrangement puts limits on the ability of both the father and the child to develop the relationship further. This has long been the complaint of the father and I well understand his frustration. He is not able to take the child to his home or visit his daughter and her children or to explore in a practical sense his Aboriginality. These are very important considerations. The father argued that the current orders do not enable the child to have a sufficiently meaningful relationship with him as such time is not substantial and significant as defined in s.65DAA(3). There is no question that the time arrangements fall outside definition of substantial and significant time. In Mazorski v Albright[39] Brown J said:
[26]…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
[39] (2008) 37 Fam LR 518 at 526 [26]
The Full Court in Sigley v Evor[40] approved this approach. The Full Court also affirmed the jurisprudence that the legislation requires the court to promote a meaningful relationship not an optimal one.[41] The Full Court also went on to hold that "meaningful relationship" is a legal construct, not a psychological one and therefore it is for the court, not an expert, to determine what constitutes a meaningful relationship.[42]
[40] [2011] FamCAFC 22, (2011) 44 Fam LR 439
[41] See also M v S (2007) FLC 93-313; Godfrey v Sanders [2007] FamCA 102; and Champness v Hanson (2009) FLC 93-407
[42] See also Heath & Hemming (No. 2) [2011] FamCA 749
Whilst the current arrangement cannot be said to be ideal in that the child does not get to spend time with his father free of the constraints of supervision, determining the quality of time requires a consideration of risk of harm issues that will be discussed below. As will be seen from that discussion below I have concluded that there is a real risk that the child’s relationships with his father and/or his mother will be compromised unless his time with his father is supervised. Whilst the current arrangement is not ‘optimal’, it is meaningful for the child as it has enabled him to maintain a relationship with his father. It is a positive relationship and brings him joy.
The father has long complained that the mother has sought to alienate the child from him. I found no evidence of that at all. If she has been, she has failed. This child has a positive relationship with his father despite the impediments of supervision. To her credit the mother acknowledged there would come a time when the supervision would have to cease but she was unable to set a timeframe. I respectfully agree with her.
I also want to pay some credit to the father. The father has not walked away from his son these last eight years. Many parents would have. He has continued to spend time with C despite his complaint about the need for supervision. Although it is disappointing that I have come to the conclusion that ongoing supervision is necessary, I am confident the father will continue to spend time with his son as, in his own way, he is committed to ensuring he has a relationship with C.
The father’s primary case was however that the child live with him. Given the father’s undisguised dislike, and distrust of the mother, and his failure to change his view of her, despite his assertions to the contrary, I have no confidence he would promote a relationship between C and his mother. There would be ongoing conflict between the parents to which the child would be exposed, and his parent/child relationships would be significantly compromised. The father’s primary proposal would be a disaster for this young boy.
For these reasons the mother’s proposal is to be preferred over that proffered by the father.
RISK OF HARM[43]
[43] Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are no current family violence protection orders between the parties although one issued in 2011 just prior to their final separation. The mother was the protected person. I accept her evidence that she remains frightened of the father but apart from the father occasionally leaving gift cards in her letter box there have not been any recent incidents that would suggest the child would be exposed to family violence between the parents.
Both the mother and the ICL have asked me to find that there would be an unacceptable risk of harm to this child if he was to spend unsupervised time with their father. ‘Unacceptable Risk’ has been considered by a number of authorities.[44] In Harridge & Harridge[45] Murphy J, proffered a list of inquiries in relation to assessing the level of risk:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium, and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?[46]
[44] M v M [1988] FLC 91-979; B & B [1988] FLC 91-957; Donaghey & Donaghey [2011] FamCA 13; George & Nichols [2016] FamCA 519
[45] [2010] FamCA 445
[46] Ibid at [73]
It was argued that the supervision remains necessary, notwithstanding the passage of eight years, because the child would be exposed to emotional harm in the father’s primary care or during unsupervised periods of time. It was submitted that father would resume exposing the child to significant negativity towards the mother, take him to unnecessary medical appointments, and generally undermine the mother’s parenting.
I accept the submissions of the ICL and the mother in this regard. Although the father asserted he would not take the child to see medical professionals with the aim of gathering evidence against the mother I do not accept he will be able to refrain from doing so. He has not been able to do so over the last eight years because his time has been supervised. However, when he attended upon Dr RR in October last year, he used the time to provide his version of historical information in an attempt to level blame for the child’s behavioural difficulties on the mother and possibly to undermine the child’s diagnosis. The ICL submitted:
The father's actions show a father who, if allowed to spend unsupervised time with the child, may again expose the child to doctors, and treating professionals inappropriately. Given the child's already complex behavioural issues, which appear to have improved, this may in fact further exacerbate such issues, and cause emotional harm, to the child.
I accept that submission.
The family report writer opined:
In my opinion based on the totality of information C would likely be exposed to his father's negative schema of the mother should he be permitted to have unsupervised time with his father. In my view, the risks identified by Justices Forrest and Bell remain current; risk to C's relationships with both of his parents and risk to his emotional and physical health and wellbeing. As such, in my opinion, the ongoing supervision of C's time with the Father continues to be warranted.
Whilst the question of supervision is one for the court rather than the expert witness, I have respectfully come to the same view for the reasons expressed in her report. The father remains obsessed with the mother’s care of the child. He will not be able to resist taking opportunities to gather evidence that he perceives would establish and confirm his long-held views of the mother’s parenting. The only way to mitigate the risk of him doing so is for his time with C to be supervised. To do otherwise would expose the child to an unacceptable risk of harm.
In considering this issue I need to look at the implications of a long-term supervision order. In Moose & Moose[47] Boland J commented on the general undesirability of long-term supervised arrangements for time and expressed concern about orders not providing for their own review.
[47] [2008] FamCAFC 108; (2008) FLC 93-375
In Fitzpatrick & Fitzpatrick[48] May J opined that in cases where the court is considering indefinite supervision it is also necessary to consider the effect on the child’s emotional well-being under such an arrangement.
[48] [2005] FamCA 394; (2005) FLC 93-227
In Betros & Betros[49] the Full Court said:
[13]It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted (see Slater & Light (2013) 48 Fam LR 573 at 583-584; Champness & Hanson (2009) FLC 93-407 at [209]-[215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; B and B (1993) FLC 92-357 at [79,780]). Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174).
[49] [2017] FamCAFC 90 per Thackray, Murphy and Austin JJ.
Whilst I readily accept long-term supervision should be avoided whenever possible, I do not consider that to be the case here. I am satisfied that the child has a positive relationship with the father despite the eight years of supervision. I am confident the father will remain in the child’s life, even if disappointed by my decision to continue the supervision. By continuing the supervision the child will be able to maintain a relationship with his father without the risk of ongoing emotional harm.
Before leaving the issue of risk of harm, the father submitted that there was an unacceptable risk of neglect if the child remained in the mother’s care because in his view, she is unable to meet his educational needs. On the contrary I found the mother to have been pro-active in ensuring the child’s educational needs have been met by having him enrolled in distance education through SS School. If the father was so concerned he would have arranged for the payment of extra tutoring for C but was not prepared to do so whilst the child lived with the mother. He would only do so if the child lived with him. I reject the father’s submission.
The father also submitted that the mother had been neglectful in failing to have C fully vaccinated. She held religious beliefs in relation to the ethics of some vaccines and was also concerned about possible adverse effects. Whilst I was disappointed to hear the mother’s evidence in this regard, I readily acknowledge many in society share her views. I found the mother to be motivated to ensure the child received proper medical care notwithstanding her views in relation to vaccinations. The father was sincere in his concern about this issue, but I do not accept the position taken by the mother can be said to be neglectful in the context of her overall approach to ensuring the child’s medical needs have been met. Her decisions in this regard do not amount to an unacceptable risk of harm to the child.
THE CHILD’S VIEWS[50]
[50] Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
C is ten years of age. There was no dispute that he is currently behind developmentally and academically. I am not satisfied that he has the requisite level of maturity to understand fully the implication of his stated wishes. Notwithstanding this finding I am satisfied that it is appropriate to have regard to them, albeit not in a determinative way.
In his interview with the report writer for the last family report it is recorded:
C said that his visit with his father are going "great", stating that recently they have been playing sport together at the contact centre. He told animated stories about the time they spend together. He suggested that their time used to be monthly and has recently increased to fortnightly. He said "I really like it when its once a fortnight”.
I accept that the child enjoys his time with his father and wants it to continue in the current fortnightly format.
PRACTICAL DIFFICULTIES[51]
[51] Section 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The significant practical difficulty in this case under the current arrangement is the cost to the parties of the child’s time taking place at a contact centre. This centre is situated in Town A requiring each party to undertake some travel but not such that imposes a significant burden on them. I accept the mother’s financial circumstances are very much more modest than the father’s. This has been made worse by the father’s failure to pay child support. The mother argued that if the court found that there has been a change of circumstances the court would impose on the father the whole of the costs of supervision. This was not supported by the ICL or the father. The mother did not however press such an order if the court was to accept her primary case that there should be no change to the orders.
If the father’s time was to occur without supervision the cost associated with the contact centre would be alleviated but this consideration does not outweigh the earlier finding as to unacceptable risk. I am satisfied that whilst there is a financial imposition on both parents, but one that impacts the mother more, this is not a major consideration that would affect my overall determination.
PARENTAL CAPACITY AND RESPONSIBILITY[52]
[52] Section 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
The father was highly critical of the mother’s ability to meet the child’s needs, particularly his educational needs. There was no dispute that C exhibited significant behavioural difficulties at his primary school leading to suspensions. I heard evidence from his 2018 teacher, Ms OO and the former Deputy Principal of that school. They did not have a good working relationship with the mother. Ms OO, was at the time of her evidence, on leave of absence from her employment which she attributed in part to her interactions with C. She gave evidence of C physically assaulting her when he was in grade two and being oppositional and destructive. She was unaware that the child had been diagnosed with ODD and ADHD. She denied the suggestion that her evidence critical of the mother was motivated by a poor view of the mother. I do not accept her denial. She clearly had a view that the mother was not doing anything to help the situation.
The evidence before the court established that the mother was in fact pro-active in making arrangements for the child by withdrawing him from mainstream school and enrolling him in distance education through P School. The mother spends a number of hours tutoring him at home and he receives support from a visiting teacher each week. His report card from 2020 showed he had been making pleasing progress and was benefiting from the weekly support sessions. He was recorded as being eager to learn and was highly creative. His grades were quite reasonable in the circumstances. I find that, contrary to the father’s assertions, the mother has been able to meet this boy’s needs in relation to education.
She has also been able to meet his medical needs by following up with his treating medical professionals. She maintains his medication as prescribed. The Court would accept that the mother has the capacity to provide for the child's needs.
Despite her modest financial means she is also able to ensure the child is properly fed, clothed and housed. I have no concerns about the mother’s ability to meet this child’s needs including his emotional needs.
Although I have no doubt the father would be able to meet the child’s day to day needs if he lived with him or was spending time with him, I remain concerned, for the reasons set out when considering the risk of harm issues, about his ability to meet the child’s emotional needs.
The father complained that he has been excluded from making decisions about the child’s needs, particularly his educational needs. This is so, given the mother has the benefit of a sole parental responsibility order pursuant to the 2014 orders. Whilst I fully accept the father would like to contribute to the discussions around such issues, these parents have no ability to communicate effectively. They cannot work together to make decisions jointly and therefore to alter the current arrangement would not be in the child’s best interests.
The mother has met all her responsibilities for the child but unfortunately the father has not. His is in arrears of child support to the extent of around $17,000. He denies such and says that the mother owes him money that was garnished from his last tax return by the Child Support Agency. He believes that the mother would use cash to buy horse feed or alcohol rather than use the money to support their son. This is yet a further indication of his negative view of the mother. I reject his view. The mother has prioritised the needs of both her children despite the difficulties she has had in doing so financially. I accept the submission made by the ICL that by giving the child gift cards rather than paying child support the father is being controlling in his behaviour towards the mother.
BACKGROUND ISSUES[53]
[53] S.60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The father submitted that the child, being a boy, would want to spend more time with him particularly as he grows older and this could be achieved by significant and substantial unsupervised time. I am not satisfied that it necessarily follows that this child will want to spend more time with his father simply because they are of the same gender. I however accept the father would view positively the chance for them to share their time together as father and son.
Of more significant import however is the child’s Aboriginality. The father is a BB People man with his ancestral lands around Town TT. He wants an opportunity to more fully engage C with his aboriginal culture. It is without question that the father would be in the best position, as between the parents, to enable the child to experience life as a BB People youth. I accept the mother’s evidence that she is supportive of C identifying as Aboriginal and learning more about his culture, although she would not be able to assist with a lived experience of it. I note though that the mother has engaged with Aboriginal services to assist the child.
Without in anyway wanting to be critical of the father he appeared to lack any deep understanding of his own culture, but I readily accept that it is important to him that C gets to know other B people, learns more of his culture and develops an attachment to his ancestral land. This would of course be more easily achieved if the child is either living primarily with the father or spending unsupervised time with him. This is an important factor but not one that overrides the risk of harm issues.
LIMITING FURTHER PROCEEDINGS[54]
[54] S.60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
At the beginning of this judgment, I highlighted the significant number of applications brought before the courts in relation to this family. There is a risk, no matter what orders I make, that these parties will find themselves in further litigation. I implore them to consider the effect on their son before launching any further applications, no matter how aggrieved they may personally feel.
The mother has sought an order restraining the father from bringing any further proceedings without first obtaining the leave of the court to do so for a period of three years. I will address this issue separately later in this judgment.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
Although the last family violence protection order was made in 2011, I am satisfied given the history of family violence, the presumption of equal shared parental responsibility does not apply. Further I am satisfied that it is not in this child’s best interests for such to be made. The parents have no ability to communicate in any effective way. That is unlikely to ever change given it has been this way for over 10 years. I am satisfied there has been no significant change in circumstances in this regard warranting a departure from the sole parental responsibility order that was made in 2014.
CONSIDERATION OF EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME
I have earlier in this judgment found that there has been no significant change of circumstances warranting a review of the 2014 orders. However, when I take into account my assessment of the best interests considerations above, I have also concluded that it would not be in this child’s best interests to change his primary residence or to spend unsupervised time with the father. Accordingly, I find that it would not be in this child’s best interests to live with the parents in an equal time arrangement or to spend time with the father in a substantial and significant arrangement.
THE MOTHER’S APPLICATION PURSUANT TO SECTION 102QB(2)(B)
The mother has asked the court to make an order that would restrain the father from bringing further proceedings without first obtaining the leave of the court to do so. She said this restraint should be for a period of three years. In her oral submissions, counsel for the mother argued that she should be relieved from continually having to face court.
The relevant provisions are to be found in ss 102QB(1) and (2) which provide:
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
Vexatious proceedings include:
(1) In this Part:
…
"vexatious proceedings" includes:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. [55]
[55] Section 102Q(1)
This list is not exhaustive.
I well understand the frustration of the mother in having to deal with legal proceedings brought by the father. Although I have found there has been no significant change in circumstances warranting a change in the parenting orders I have also found that the father would have been legitimately concerned about the welfare of C upon hearing of his suspensions from school and then his ultimate withdrawal from school. Given the parties’ inability to talk through issues when they arise it is again not surprising that the father resorted to legal action in an attempt to address his concerns.
In order to make the order sought by the mother I would need to be satisfied that the father’s proceedings were brought vexatiously and that he has done this frequently.[56] For the reasons outlined in the previous paragraph, I am not satisfied that at the time the father brought his application he was acting vexatiously. Although, when the contravention applications are taken into account it can be said that there have been frequent proceedings, I am not satisfied that the father has brought Initiating proceedings frequently. The first set of parenting proceedings were brought by the mother in 2011 but this application was not prosecuted. The father then brought parenting proceedings the following year which led to the 2014 orders. In 2015 the father’s application to vary those orders was dismissed and an appeal was dismissed the following year. The father did not bring any further substantive proceedings until these, filed in December 2018.
[56] See Rilak & Tsocas [2020] FamCA49
Whilst the litigation has appeared to be never ending for the mother, I am not satisfied that it can be said to be frequent. Having said that it is important for both parents to appreciate the negative effects on children of ongoing litigation. This will be even more pronounced for a child, C’s age. The ICL submitted:
This is, however, a matter that needs to end for C. As previously outlined, he has spent the majority of his life, with his parents engaged in parenting proceedings. This has had a significant impact on C, and it will continue to do so, should the parties be unable to cease the constant litigation between them.
I share that view. Despite my sympathies for the mother’s request for the making of a restraint on further litigation, I am not satisfied the criteria for the making of such an order has been established.
CONCLUSION
For the reasons set out above I dismiss the father’s application filed 6 December 2018 and the mother’s application for restraint on the father’s ability to bring proceedings without leave of the court.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lapthorn. Associate:
Dated: 30 August 2021
Exhibit F2 Statement from Mr PP
Exhibit ICL1 Tender Bundle
Exhibit M1 Minute of order sought by mother
Exhibit F3 Father’s fallback position minute
Exhibit M2 QQ Medical Centre (Town MM) medication certificate dated 8 February 2021
Exhibit M3 Email correspondence regarding Covid test outcome dated 10 February 2021
Exhibit M4 Table of indebtedness to the City B Children’s Contact Centre dated 27 May 2021
Exhibit M5 Child Support Agency email dated 26 May 2021
Exhibit M6 Child Support Agency letter dated 26 May 2021
Exhibit ICL 2 Student Progress Report, Year 4, Semester 1, 2020
Section 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
Section 60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
Section 60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
Section 60CC(3)(j): Any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.
Section 60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.
Section 60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
S.60CC(3)(h): If the child is an Aboriginal child or Torres Strait Islander child: (a) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (b) the likely impact any proposed parenting order under this Part will have on that right. See also S.60CC(6).
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