W and G

[2010] FCWAM 6

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150

TERRACE ROAD

ACT : FAMILY COURT ACT 1997

LOCATION : PERTH

CITATION : W and G [2010] FCWAM 6

CORAM : DUNCANSON M

HEARD : 29 MARCH 2010

DELIVERED : 28 APRIL 2010

FILE NO/S : PTW 6559 of 2001

BETWEEN : W Applicant/Father

AND G

Respondent /Mother

Catchwords:

Application to vary parenting orders - the "rule" in "Rice & Asplund".

Legislation:

Family Court Act 1997,

Category: Not Reportable

Representation:

Counsel:

Applicant : Self Represented Litigant
Respondent : Self Represented Litigant

Solicitors:

Applicant : Self-Represented Litigant
Respondent : Self-Represented Litigant

Case(s) referred to in judgment(s):

Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

1[Mr W] recommenced proceedings concerning [Jonathan] less than two months after final orders were made as to his living arrangements.

2The principal issue now to be determined is whether the Mr W’s applications filed 5 March 2009 should be dismissed as proposed by [Ms G] or whether the matter should proceed to a defended hearing.

3I heard submissions from the parties in relation to this on 29 March 2010. On that date I made some parenting orders by consent mostly by way of further definition of the existing orders and I reserved my decision as to the principal issue.

BACKGROUND

4On 14 January 2009 I handed down judgment and made orders in relation to Mr W and Ms G’s son, Jonathan G-W born in September 2001. Jonathan is currently aged eight years. I ordered that the parties have equal shared parental responsibility for Jonathan. I ordered that he live with Ms G and that she be permitted to relocate him to [the North-West] for a period of two years. Orders were also made providing for Jonathan to spend time with Mr W during holiday periods and for him to communicate with his father.

5Mr W’s concerns centre around [Mr F] who is Ms G’s partner. The thrust of Mr W’s case is that Jonathan is not safe living with Mr F and the court should order that Jonathan live with Mr W.

6Mr W complains that Ms G was deceptive in failing to disclose her relationship with Mr F in her affidavit material filed prior to trial and important information relating to Mr F, in particular, his criminal record was not available at trial. Mr W is confident that had I been aware of Mr F’s record I am unlikely to have reached the decision I did regarding Jonathan’s living arrangements.

RELEVANT HISTORY OF PROCEEDINGS

7Although Mr F’s criminal record has been produced in these proceedings by way of subpoena to Western Australian Police, it was not available at trial. The background to that is as follows:

8The parties, who were both self represented, attended a procedural conference before a Registrar on 9 December 2008. The matter was listed for trial on 12 January

2009 and also for a procedural hearing before me on 7 January 2009 to monitor compliance with orders made for the filing of documents. At the procedural conference an order was made that both parties have leave to issue subpoenae returnable in a Subpoena List prior to 7 January 2009, with permission to list in a full list if necessary.

9Ms G filed a subpoena addressed to the Commissioner of Police which was returnable on 6 January 2009. The police records in respect of Mr W were produced and the parties were given liberty to inspect the same.

10 During the course of the procedural hearing on 7 January 2009 it became clear that Ms G intended her partner, Mr F to accompany her to the North-West to live with her and Jonathan there. Ms G had not mentioned Mr F in her affidavit of evidence in chief and I asked her if he would be prepared to attend court on 12 January and give evidence. He did so.

11 On 7 January 2009 Mr W attempted to file two subpoenae, one of which was addressed to Western Australian Police in relation to Mr F’s criminal record. Permission was refused as there was insufficient time before trial for the recipients to comply and no evidence that they could comply prior to trial.

12 Mr W was represented by a solicitor at trial. Mr F gave evidence but was asked no questions at all regarding his criminal record or about any previous behaviour involving violence. Mr W subsequently explained this was an error on the part of his solicitor.

13 On 14 January 2009 judgment was handed down. Ms G was permitted to relocate Jonathan to the North-West for a period of two years and various parenting orders were made. The proceedings were dismissed.

14 On 21 January 2009 Mr W filed a Form 2 application seeking a review or stay of the orders made on 14 January 2009. In particular he sought an order that an injunction be granted restraining Mr F from travelling to or residing with Jonathan in the North-West. In his application Mr W stated he had no objection, in the interim, to Ms G and Jonathan relocating to the North-West but that should be without Mr F until his appeal was filed. Mr W’s application was listed for hearing on 27 January 2009 and was dismissed.

15 Mr W lodged an appeal against the orders dated 14 January 2009 with the

Supreme Court but the appeal was discontinued by him on 23 March 2009.

16 On 5 March 2009 Mr W filed Forms 1 and 2 applications seeking interim and final orders that Jonathan live with him and spend time with Ms G during school holidays. He also filed a Form 4 Notice of Child Abuse or Family Violence. Some parenting orders were made on 12 March 2009. On 25 March 2009 Mr W filed a subpoena addressed to the Commissioner of Police seeking production of Mr F’s criminal record. Those documents were produced and on 9 April 2009 an order was made that the parties have leave to inspect them.

17 As to the proceedings, Ms G’s Forms 1A and 2A responses were filed on

8 April 2009.

18 The parties attended a Case Assessment Conference on 14 April 2009. Family Consultant [C] reported that Mr W made allegations of threatening behaviour towards him by Mr F and he was concerned that this put Jonathan at risk. Ms G was concerned as to Mr W’s increasingly erratic and obsessive behaviour and in particular his mental health.

19 In view of the high level of conflict between the parties and the allegations made by both parties to the Family Consultant I made an order that Jonathan be

independently represented. Unfortunately it was not considered that this matter fell within the relevant category, namely 1 and/or 6 of the criteria for the appointment of an Independent Children’s Lawyer as set out by the Full Court in the Re K decision and aid was refused notwithstanding the terms of Family Consultant [C’s] report.

20 On 13 August 2009 the parties were ordered to file affidavit material on which they intended to rely. The matter was listed for hearing on 21 January 2010. It did not proceed on that date as Ms G sought to attend by telephone link up which was not acceptable to Mr W. Ultimately the matter proceeded on 29 March 2010.

MR W’S CASE

21 Mr W deposes to having grave concerns for the safety, welfare and stability of Jonathan. He says that after the trial he made enquiries about Mr F’s police record which upset Mr F and Ms G and they both became aggressive and defensive. He received a large number of phone calls and text messages from both of them which he described as being threatening and harassing. He has not been able to communicate effectively with Jonathan since he relocated to the North-West. Mr F interferes in his calls and webcam sessions and abuses him during his conversations with Jonathan. Ms G and Mr F even allege that he was related to John Kizon. Mr F referred to him as his “bitch”. In a telephone message, Mr F threatened to smash his teeth in as Mr F alleged that Mr W had called him a paedophile. Mr W states that Mr F had previously alleged that he interfered sexually with Jonathan.

22 Mr W obtained a violence restraining order against Mr F protecting himself and Jonathan and the order was served upon him on 28 February 2009. Mr W subsequently learned Jonathan was in Perth and had been moved to Perth to enable Mr F to continue to live with Ms G in the North-West. Ms G subsequently obtained a restraining order against Mr W and his wife [Naomi], obtained a restraining order against Mr F.

23 Mr W believes that Ms G is brain washing and manipulating Jonathan against him. His inspection of Mr F’s criminal record causes him alarm as he says, there are issues with other women and children in relation to violence and abuse. Mr F has a record for aggravated burglary, fighting with police officers and threatening behaviour. Mr W and his family have been harassed and threatened by Ms G and Mr F and Ms G does not put Jonathan’s interests before her own. Mr F is not an appropriate guardian or role model. Mr W is able to offer a stable positive environment for Jonathan.

MS G’S CASE

24 Ms G’s case is that most of Mr W’s evidence is exaggerated, untrue and irrelevant. She maintains he is attempting to re-open the original relocation proceedings. Mr W has made several nasty threats to Mr F and antagonised him. Mr W has exaggerated the number of text messages and calls received from Mr F and only one message from Mr F was abusive where in frustration he responded to Mr W but only after tolerating a massive amount of abuse. Mr W repeatedly accused Mr F of being a paedophile both directly to him and to Ms G.

25 Ms G says Mr W has endeavoured to have Jonathan live with him since he was a baby. In the past his mental health has been volatile and out of control. Mr W’s own police records include convictions for breach of violence restraining order, assault, common aggravated assault, unlawful damage, drunk driving, cultivation and possession of cannabis. Ms G is concerned that Mr W still uses cannabis. She has serious reservations about his long term mental health.

26 There is no change in Jonathan’s circumstances. He is happy and well cared for and enjoys a special relationship with Mr F who she described as a fantastic role model to him and a loving and wonderful partner to her. She deposes that Mr W is obsessed with keeping Jonathan and that he has lied and exaggerated in an attempt to re-open the proceedings. She says he is jealous and bitter about losing the case. Apart from some minor changes the existing orders should remain in place.

27 Ms G asserts that Mr W lied to the Court and omitted important factual information. She refers to his Form 4 Notice wherein at Part H, about the alleged risk of family violence he states:

“My son has been booted out of his mother’s home in the North-West and sent to Perth. The safety of my son is in some stranger’s

care who I know has a history of domestic violence”.

28 In his affidavit sworn and filed 5 March 2009 Mr W states at Paragraphs 6, 7 and

8 as follows:

6.“I rang the school (the North-West Primary) to find out if our son was at school, only to be informed by the school Principal (Ms M ) that Jonathan has not attended school for a week. I was concerned and requested if I could speak with the Respondent Ms G (who was also teaching there) only to be informed that she was not at school either.

7.As Jonathan’s father I was really concerned for the welfare of our son, as all my calls to the Respondent’s residence and mobile were not being answered. So I rang the Police at the North-West to do a welfare check on my son (so as to alleviate my fears for his well being) the officers informed me that they would check on the residence to make sure that Jonathan is okay.

8.The officers [(Senior Constable L] Reg No. xxxx and [Constable U] Reg No. xxx informed me that they spoke to Ms G and her partner, Mr F, and Mr F informed them that ‘they booted or kicked Jonathan out and sent him back to Perth on his own via a flight from the North-West to stay with some of the Respondent’s friends in [Perth suburbs]’”.

29 Mr W omitted to mention the important fact that on 22 February 2009 he had attended Fremantle Court and obtained an interim Violence Restraining Order protecting himself from Mr F. The terms of the order were that Mr F was restrained

from communicating with him or going within five metres of him or within 25 metres of any boundary of his residence. The order was subsequently varied to include Jonathan and was served upon Mr F on 28 February 2009.

30 Ms G deposes that when the order was served, her family were in shock and they all shed many tears. Their lives were turned upside down and the Violence Restraining Order had an extremely traumatic effect upon Jonathan who cried uncontrollably. Jonathan and Mr F could not remain in the house together and she considered her only short term option was to send Jonathan to Perth early for his holiday to give them an opportunity to resolve the matter.

31 Ms G deposes that Mr W lied when quoting the police officers and she annexes to her affidavit filed 8 April 2009 at Annexure A an email dated 11 March 2009 from [Sgt W]l, Officer in charge, the North-West Police station. The email reads:

“To Whom It May Concern. Today I had a conversation with

[Mr F] regarding an affidavit that may be being presented

to the Family Court by Mr W. [Mr F] advised me of the text in that affidavit relating to two of my Police Officers,

[Senior Constable L] and [Constable U]”.

The text related to a conversation between Constable U

The alleged text states “they booted or kicked Jonathan out on a flight to Perth by himself to stay with the respondents friends

in [Perth suburbs].

I have not viewed the affidavit but if this is what is contained in it, it is completely false. I have spoken to Constable U regarding his conversation with Mr W and he strenuously denies these statements.

Constable U advises me he told Mr W, simply that

Police had no welfare concerns for Jonathan and that Jonathan was now in Perth staying with friends or relatives. Never were terms as described above used……… Respectfully forwarded for your information and that of accuracy”.

32 Ms G asserts that Mr W also lied in relation to his telephone call to the school principal.

33 Ms G annexed to her said affidavit at Annexure B a letter from Ms M the

Principal of the North-West Primary school. The terms of that letter are as follows: “To Whom It May Concern

Jonathan G-W has been a student at the North-West Primary School from

2 February 2009.

Jonathan’s attendance was 100% up until 3 March where he has been absent with a reasonable explanation. During the short time that Jonathan has been at the North-West Primary he has presented himself as a happy child who is willing to share his ideas with adults and peers and who enjoys school. He engages in all school activities with enthusiasm and has begun to make friends in his new class. I was made aware during the enrolment interview of the custody orders that were in place regarding Jonathan. Pursuant to this information when the school was contacted on Thursday 26 February by a person identifying himself as Mr W and asked questions about Jonathan’s attendance he was informed Jonathan was at school. When contacted on Wednesday 4 March and asked again about Jonathan’s attendance I informed Mr W that Jonathan had not been at school for 2 days (Tues 3 and Wed 4) but had attended all other days.

During conversation with Ms G about Jonathan’s absence from school after 4 March I enquired as to Mr W’s accent.

Ms G informed me that Mr W does not have an accent. Ms G believes that we were speaking to [Mr G].

Ms G informed the school of a new court order restricting Mr W’s access to gaining information from the school.

Therefore no information will be given until I receive further advice and an identification procedure is outlined to ensure that it is

Mr W to whom we are speaking. …. Your sincerely Ms M, Principal”

34 Further, in proceedings before me on 27 January 2009 Mr W made certain statements regarding Mr F’s record. The relevant parts of the transcript read as follows:

“MR W: Your Honour his record has a circle next to it that says

“Approach with caution, dangerous man”.

HER HONOUR: I have no idea where you could have got that from or what that means. What did you see that on?

MR W: Mr F’s police record Your Honour.

HER HONOUR: Okay. I know nothing about that, but he’s never been a problem. There was no evidence over the last 11 months of being any difficulty at all between him and Jonathan or you and him.

MR W: No Your Honour, I actually hadn’t met him”.

35 Ms G points out that Mr W told the Court on 27 January that he had seen Mr F’s police record and yet he told the court on 12 March that he had not seen Mr F’s record.

36 On 1 May 2009 the court received a letter from [Mr M], Superintendent of the Police Complaints Administration Centre (Corruption, Prevention & Investigation). The letter was addressed to the Duty Registrar and referred to a complaint by Mr F alleging that Mr W had been provided with confidential information by the police about Mr F. Mr F produced to the police a copy of the transcript of the proceedings on 27 January 2009 making reference to the above paragraphs. As the release of confidential police information is a criminal offence or a breach of police policy an internal investigation was commenced. During the preliminary enquiry [Senior Sgt S] spoke with Mr W who denied that the police gave him any information. He told the police that Mr F’s police records were subpoenaed and that he viewed them at the Family Court. [Superintendent M] requested permission of the Duty Registrar to inspect the file.

37 It was not until 9 April 2009 that permission was given to inspect documents produced by Western Australian Police being Mr F’s criminal record. Ms G points out Mr W could not have seen any notation on Mr F’s record as stated by him on 27

January 2009. During the police internal investigation he denied having received any information from the police and told the police he obtained information from the subpoenaed documents.

THE LAW

38 Both parties were self represented. Neither referred to what is commonly known as “the rule in Rice & Asplund”.

39 In Rice & Asplund (1979) FLC 90-725, Evatt C J said:

“The principles which, in my view, should apply in such cases [variation of custody order] 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 is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there are some changed circumstances which would justify such a serious step, some new factor arising, or, at any rate, a factor which was not disclosed at the previous hearing which would have been material It is a question of finding 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”

40 In SPS & PLS (2008) FLC 93-363, Warnick J referred to the “rule” in Rice & Asplund. He said:

“In my view reflection on the rule shows that:

(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.

(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interest principle”.

(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

(vi) “Shorthand” statements of the rule may contribute to its misapplication.

(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard”.

41 As stated, the rule can be applied as a preliminary matter or in a defended hearing. When considering his observation that at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle” Warnick J said:

“Thus, in my view, when the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination

‘on the merits’. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, …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 to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue”.

Accordingly the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.

42 I now consider the evidence before me to assess whether it is necessary or proper in the best interests of Jonathan to allow these proceedings to continue further. At this stage the evidence is untested and I make no findings in fact where the evidence is in dispute.

DISCUSSION

43 As to the change in circumstances Mr W’s complaints are centred squarely on Mr F. He was not aware, until shortly before the trial, that Ms G intended Mr F accompany her and Jonathan to the North-West. However, at trial it was clearly part of Ms G’s case that he would accompany them and indeed he gave evidence to that effect. My decision was made in that knowledge.

44 Prior to trial Mr W had not had an opportunity of inspecting Mr F’s criminal record. However Mr F was not asked any questions about it, although there was ample opportunity for that to be done by Mr W’s legal representative.

45 After orders were made and Jonathan travelled to the North-West the situation between Mr W, Ms G, Mr F and other family members deteriorated rapidly. Mr W was clearly determined to obtain information regarding Mr F’s background. He made a number of allegations about him. He alleged in Court on 27 January 2009 that Mr F was a dangerous man and that he had seen his criminal record. The record was not in fact inspected by him until after 9 April 2009. Relations between the parties became strained and unpleasant and this may have impacted on Jonathan’s communication with Mr W. Mr W stated that Mr F obstructed his telephone calls with Jonathan. Ms G denied this. She described Mr W as being obsessed with Mr F’s record and making unfounded allegations against him. She said he became impossible to communicate with and he provoked arguments. Ms G explained she has a loving relationship with Mr F who is devoted to Jonathan and who is a good role model for him.

46 There have been a number of telephone calls, telephone messages and text messages between the parties and Mr F. Mr W said that this “harassment”, as he described it, continued for most of 2009. Ms G said it ended after a few months into the year.

47 Turning to Mr F’s criminal record, Mr W complained, during submissions, that his own criminal record was before the Court at trial. He further complained that some years ago he had to undertake various assessments and had only supervised time with Jonathan. It appears that he was referring to orders which were made by consent on 29 April 2004 which provided that Jonathan live with Ms G, and that he have contact with Jonathan subject to him engaging in regular six monthly reviews with his consultant specialist psychiatrist and monthly reviews with the GP, at time to be supervised by the paternal grandparents. Mr W compared this with Mr F who, notwithstanding his record, is allowed to live in the same home as Jonathan.

48 I have examined the subpoenaed documents from the Western Australian Police.

The criminal record of Mr F has been produced in these proceedings but was not available to me at trial. The History For Court documents (Criminal and Traffic) contain various convictions between March 2003 and August 2006. The most serious of these are in March and July 2004 for violent behaviour and December 2003 for breach of a violence restraining order. There are also charges of breach of bail. The reports contain information about domestic incidents between Mr F and his former partner.

49 For the sake of completeness and because Mr W referred to his own past record the subpoenaed documents from Western Australian Police reveal convictions against him between 1997 and 2006 for aggravated assault, breach of violence restraining order and drug offences. They also relate to domestic incidents involving a person with whom he was in a relationship.

CONCLUSION

50 The question is whether Mr F’s criminal record and the allegations made by Mr W amount to a change in circumstances which makes it necessary or proper in the best interests of Jonathan to allow Mr W’s application seeking an order that Jonathan live with him to continue. I am not satisfied, upon the evidence that this is the case and that it is in the interests of Jonathan that he be the subject of further litigation.

51 There is no evidence that Mr F’s previous criminal behaviour has impacted on Jonathan in any way. There is no evidence of harm or risk of harm to Jonathan by Mr F. On the contrary, Ms G deposes to Jonathan enjoying a very special relationship with Mr F who she describes as a fantastic father figure and role model to Jonathan and a loving and wonderful partner to her.

52 It appears that the relationship between the parties deteriorated rapidly after Jonathan travelled to the North-West with Ms G accompanied by Mr F. The telephone conversations, messages and text messages became vitriolic. Mr W describes them as constant harassment of him. Ms G considers this description to be an exaggeration but concedes that on one occasion after being called a paedophile Mr F responded and sent a message which was entirely inappropriate. Mr W denies ever calling Mr F a paedophile and says that it was he that raised the issue of interfering with a child.

53 It is not clear to me to what extent Jonathan was aware of the unpleasant communication between the parties. Ms G says she shielded him from this and does not discuss the difficulties with him although he was aware of the Violence Restraining Order. Mr W described him as being reluctant to talk about life in the North-West and as having secrets.

54 There is no doubt that some of Mr W’s evidence is not borne out by written statements of independent persons and these inconsistencies are apparent. Of concern are the following:

• Mr W filed a Form 4 Notice based on an allegation that the mother had “booted

Jonathan out of the home”. Mr W did not mention that he had obtained a

violence restraining order protecting Jonathan from Mr F and Ms G explained she had no alternative but to send Jonathan to Perth while this was resolved.

•Mr W said in Court on 27 January 2010 he had seen Mr F’s police record. He described it as circled and marked “Approach with caution. Dangerous man”. Mr W was given leave to inspect the subpoenaed documents on 9 April 2010, some months after Mr W’s statement to the court that he had seen Mr F’s record.

•Mr W said he contacted the Principal of the school at the North-West and learned that Jonathan had been absent for a week. The Principal described a person with a foreign accent contacting the school and she informed that person that Jonathan had been absent for two days.

•Mr W said police officers in the North-West told him that Mr F informed them that they booted or kicked Jonathan out……. In his written statement the police officer, [Constable U], strenuously denies having said that.

55 There is no evidence of any difficulties between Mr F and Jonathan and no evidence that Jonathan has been put at risk or is at risk of harm, neglect or family violence while in his mother’s care and in the company of Mr F.

56 Ms G produced a letter from a medical Ssrvices company , the North-West from

[Dr H], General Practitioner, who has seen Jonathan on two occasions. His Semester
2 report in 2009 for Year 2 reports as follows:

“Jonathan is a capable student who works well with others in the classroom. He is always willing to participate in activities and discussions with his peers. His sense of humour is evident in his writing and in his enjoyment of quirky text. Jonathan is able to work independently and often uses his initiative to successfully solve problems. A focus for improvement for next year would be to become more organised and consistent in his application to completing work in the time allocated. It has been a pleasure to teach Jonathan and we wish him every success in Year 3.”

57 Ms G also produced a letter from [Ms M], Senior Social Worker at [the North- West Health] centre dated 7 April 2009 concerning Jonathan. Ms M saw Jonathan at the request of Ms G and she summarises by saying:

“Throughout the whole session Jonathan presented as a well adjusted child who feels valued and loved. There were not signs or symptomology indicating any form of child abuse including sexual abuse. He was able to show affection towards his mother and expressed affection for Mr F and his own father. He presents as content with the current living arrangements and access visits. No further sessions with Jonathan are anticipated at this stage”.

58 I previously found that Jonathan enjoyed a meaningful relationship with both of his parents and that was to his benefit. None of the evidence indicates that that is no longer the case. Ms G says he is happy in her care in the North-West in the company of Mr F. Mr W says he is happy when in his care during school holidays.

59 He may have been aware and may still be aware of the conflict between his parents and their respective partners. It may explain why he does not talk about a parents household when living with the other. The evidence refers to him being a happy, content, well adjusted boy who is enjoying his life in the North-West.

60 The unpleasant text messages and phone calls appear to have ceased. Ms G said they ceased early in 2009 although Mr W said they continued until towards the end of

2009. On 29 March 2010, I made some orders by consent which will assist the parties with some minor issues such as what is to happen during the Easter holidays and obtaining a passport for Jonathan. Most significantly, by consent and without admission as to need, I made an order that Mr F should not be present in the room when Jonathan speaks with his father. Ms G stressed that such an order was not necessary but Mr W sought it, and it appeared to me that making the order may assist in resolving a contentious issue. This is in contrast to the order sought by Mr W, namely that Jonathan live with him and spend holidays with Ms G. Clearly that is a significant change to the existing order, and a matter which I have considered in coming to my decision.

61 I have considered carefully the merits of Mr W’s case and the affidavit evidence of both parties.

62 I considered the likely impact on Jonathan of further proceedings, in contrast to the evidence that he is happy and settled with the current living arrangements. Notwithstanding the evidence as to firstly, Mr F’s criminal record and secondly the unpleasant communication between the parties, I am not persuaded that Mr W has satisfied the test in Rice & Asplund, namely that there is a sufficient change in circumstances such that these proceedings in relation to Jonathan should continue.

63 I intend to dismiss the application and responses.

I certify that the preceding [63] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Secretary