WICKS & FOOTE (No.4)

[2019] FCCA 872

FEDERAL CIRCUIT COURT OF AUSTRALIA

WICKS & FOOTE (No.4) [2019] FCCA 872

Catchwords:
FAMILY LAW – Parenting – where final parenting orders were made 2 months before new proceedings commenced – consideration as to whether there were changed circumstances to justify a new hearing – principles in Rice & Asplund (1979) FLC 90-725 discussed – preliminary issue – where best interests of the child is primary consideration – whether change in circumstances is of sufficient significance to justify revisiting the parenting arrangements – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.12A, 13A, 60B, 60I

Cases cited:

CDJ v VAJ (1998) 197 CLR 172

CDW v LVE [2015] WASCA 247

F & C & Child Representative [2004] FamCA 568

King & Finneran (2001) FLC 93-079

Marsden v Winch [2009] FamCAFC 152

Poisat & Poisat [2014] FamCAFC 128

Reid & Lynch [2010] FamCAFC 184

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Applicant: MS WICKS

Respondent: MR FOOTE

File Number: PAC 3888 of 2017

Judgment of: Judge Obradovic

Hearing date: 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Parramatta

Delivered on: 3 May 2019

REPRESENTATION

Counsel for the Applicant: Ms Hamilton

Solicitors for the Applicant: Coode & Corry

Counsel for the Respondent: Ms Conte-Mills

Solicitors for the Respondent: Higgins Lawyers

ORDERS

1. The Response filed 16 November 2018 is dismissed.

2. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Wicks & Foote (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3888 of 2017

MS WICKS

Applicant

And

MR FOOTE

Respondent

REASONS FOR JUDGMENT

Introduction

1. [X] is 13 years old. Her living arrangements have been the subject of parenting orders since she was but a toddler. The parents, who are respectively the applicant mother and the respondent father to this application, first entered into consent orders regarding [X]’s parenting on 23 November 2006 (“First Final Orders”).

2. Pursuant to the First Final Orders [X] lived with her mother and spent time with her father. By the very fact that [X] was so young when the orders were made, time was gradual and fairly flexible.

3. There were changes to both parents’ lives and importantly to [X]’s life over the course of the next ten years. One significant change was that the mother re-partnered. This occurred in approximately November 2014.

4. In 2017 the father commenced a new round of litigation between the parties. In his affidavit which was filed in support of the orders which he then sought, including orders for [X] to live with him, he outlined what he considered to be a number of changed circumstances. The application was made in circumstances where the father retained [X] contrary to the First Final Orders.

5. On 13 September 2017 orders were made for [X] to be returned to the mother and to spend time with the father.

6. As is the usual course in this Court, the proceedings were case managed by the docket Judge. On 13 September 2017 the parties attended a Child Dispute Conference, and a memorandum to the Court was provided.

7. On 22 March 2018 the parties were to attend a Child Inclusive Child Dispute Conference. Due to the father filing a Notice of Discontinuance the conference did not occur. Instead, the matter ultimately proceeded to a final hearing undefended as against the father, and with a consent position between the mother and the Independent Children’s Lawyer.

8. On 9 August 2018 the Court heard the mother’s application for final orders. Short Reasons for Judgment were delivered orally on the day and Final Orders were made. (“Second Final Orders”).

9. On 13 September 2018 the mother filed an Initiating Application. The primary orders she sought was a recovery order as [X] had left school on 5 September 2018 and had gone to her father, consequent to which, he retained her.

10. On 24 September 2018 the Court heard the mother’s recovery application. The father did not appear. An order for [X]’s recovery was made, which was executed by the New South Wales Police on 24 September 2018.

11. Two months after the recovery order, the father filed a Response, seeking again, orders for [X] to live with him.

12. The Court was advised in November 2018 that the mother would not be pressing for the orders she sought in her Initiating Application (which were a slight variation on the Second Final Orders), however, the father continued to press for a change of residence.

13. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings. Given that there are already final orders in place in respect of [X], the Court is firstly concerned with whether it should entertain the fresh application at all. These are the Reasons for Judgment in respect of that ‘threshold’ issue.

Relevant Legal Principles

1. In Rice & Asplund[1] the Full Court said:

   The principles which, in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which the 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 that…there is some changed circumstance which will justify such a serious step, some new factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing…

   [1] (1979) FLC 90-725

2. The rule in Rice & Asplund is of long-standing, has been consistently recognised and applied both by the Full Court of the Family Court, the Family Court and this Court, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently[2]. 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.[3]

   [2] Poisat & Poisat [2014] FamCAFC 128 at [8] and [13]

   [3] SPS & PLS (2008) FLC 93-363 at [73]

3. The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation.[4]

   [4] King & Finneran (2001) FLC 93-079 at [44] and [64]

4. The words of caution pronounced by the High Court in CDJ v VAJ[5] are respectfully adopted:

   The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and uncertainly of prolonged repetitive proceedings.

   [5] (1998) 197 CLR 172; [1998] HCA 67 at [118], cited by the Full Court of the Family Court in the context of a Rice & Asplund argument in F & C & Child Representative [2004] FamCA 568 at [44]

5. It has been held that the assessment of whether the asserted change in circumstance is significant is simply part of a composite multi-faceted approach for assessing whether the re-litigation of parenting arrangements is in the best interests of the child.[6]

   [6] CDW v LVE [2015] WASCA 247 at [84]

6. The Full Court in Marsden v Winch[7] held as follows:

   … 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 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.

   [7] [2009] FamCAFC 152 at [50]

7. In summary, a Court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment. In dealing with such an application, the Court must be satisfied that there is some changed circumstance which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material.[8]

Determination of Rice & Asplund Issue

[8] Reid & Lynch [2010] FamCAFC 184

1. At the final hearing on 9 August 2018, the Court found the following facts[9]:

   [9] At final hearing, the Court adopted the Chronology of the Independent Children’s Lawyer set out in his Case Outline Document filed 3 August 2018

   a)The father was born on … 1966.

   b)The mother was born on … 1967.

   c)The parties met in 2001, and subsequently lived together.

   d)The parties’ only child [X] was born on … 2005.

   e)On 23 November 2006, First Final Orders were made by consent, which provided for [X] to live with the mother and to spend time with the father five nights per fortnight and for half of each school holiday period.

   f)In September 2009, [X] was diagnosed with Autism Spectrum Disorder.

   g)On 5 March 2010, Ms L, speech pathologist, provided a report which opined that [X] “presents with expressive language delay, mild articulation delay and pragmatic delay/disorder.”

   h)In early August 2010, [X] was selected for inclusion in Kids on the Move project which assists children with high support transition to a mainstream kindergarten.

   i)[X] commenced attendance at School M Primary School in 2011.

   j)In 2013, [X] was spending each alternate weekend with the father and a Thursday afternoon. In 2014, the father unilaterally determined that he would have time with  [X] each weekend and that on alternate weekends he would return the child to the mother on Saturday mornings.

   k)In March 2014,  [X] was diagnosed with a “sulphite sensitivity/allergy”.

   l)The mother commenced a relationship with Mr F, her current partner, in or about November 2014, but they did not move in together until 2015. After the mother notified the father of her intentions to move in with Mr F, the mother says that the father’s attitude towards her changed.

   m)In 2015/2016 [X] was enrolled in the ‘Anchor Program’.

   n)In early 2017, [X] commenced to see Ms D, a clinical social worker. The sessions were ultimately terminated.

   o)The mother speaks of an incident at the swimming pool between the parents, upon which the father retained [X]. Two days later, on 29 July 2017, the mother received a phone call from the father where he advised he would not be returning the child. The mother reported the matter to the Police. A few days later, on 4 August 2017, [X] telephoned the mother.

   p)On 9 August 2017, the father commenced proceedings, seeking orders for [X] to live with him and spend time with the mother. A Response was filed by the mother on 8 September 2017, and after a contested interim hearing on 13 September 2017, the Court ordered the father to deliver the child to the mother’s residence by that evening. The parties attended a Child Dispute Conference on the day of the interim hearing, and the Court also appointed an Independent Children’s Lawyer.

   q)The interim orders made on 13 September 2017, have substantially been complied with by the parties.

   r)In … 2017, the mother and [X] attended a 10 day cruise to Country N.

   s)In January 2018, [X]’s NDIS plan was approved and [X] started attending School G High School in February 2018.

   t)On 7 February 2018, the father filed a Notice of Discontinuance in respect of his Initiating Application.

   u)Despite orders, neither party attended the Child Inclusive Child Dispute Conference which was booked for 22 March 2018.

   v)On 17 May 2018, the mother attended Dr K, psychiatrist, with [X]. Dr K diagnosed [X] with Conduct/Behaviour disorder and depression (low mood disorder) and she was prescribed Risperdal.

2. As noted earlier, the Second Final Orders were made on 9 August 2018. The father did not participate in that final hearing and orders were made in his absence. The orders which the Court ultimately made, were the subject of a joint application by consent as between the mother and the Independent Children’s Lawyer.

3. On 5 September 2018, at around 4.15pm the mother received a text message from [X] which read “Hey mum, I’ve run away and headed to dads, I am sick of Mr F and your shit, I shouldn’t have put up with any of Mr Fs crap just because u do.”[10] The mother subsequently telephoned [X] a number of times and was able to speak with her. The child told her that she had stopped taking her night time medication. The mother subsequently emailed the father and advised him of the child’s next appointment with the psychiatrist, which the father attended with the child on 6 September 2018.

   [10] Grammatical errors in original

4. The mother initially reported that [X] had been withheld by the father on 5 September 2018. She spoke to the child’s school on 6 September 2018 and was advised that [X] was not at school on that day. The father in the meantime attempted to enrol the child into Town H High School, but that was not successful. Consequently, [X] did not attend school until she returned to her mother’s care on 24 September 2018.

5. On Tuesday, 11 September 2018, the mother and her partner, attended Town O Police Station to report [X] as a missing person as the mother had not been able to contact the father or [X] for two days.  While at the Police Station, the mother received a phone call from [X]. The police answered the call and spoke to the child, who passed the phone to the father. The father informed the police that [X] was being abused by her step-father and that he would not be returning the child to the mother due to the allegations of abuse. He said was waiting for an interview with the Department of Family and Community Services.  The father also told Police that he had reported the matter to Town H Police. The records indicate that the child complained to the Police on 5 September 2018, when she was taken by her father to Town H Police Station, that she is often told that she is a “chatterbox”… “stupid”… “if you don’t behave I’ll smash your Ipad”… “your father is a coward” and similar.

6. When  [X] was recovered by the Police pursuant to the orders of this Court made on 24 September 2018, the following is noted to have occurred:

   About 7.40pm on Monday 24^th September 2018 police attended the above LOC as a result of the above court order. At this time, police were met at the front door by the above father. The father was immediately defensive towards police. Police introduced themselves and explained why police were at the LOC. A copy of the court order was handed to the father and it was explained to him. The father further became defensive towards police stating “She’s not going”. Police could then hear the CHILD begin to cry and also state “I don’t want to go”. The father then said to police that he does not think that the mother is suitable for the CHILD to be living with. Police informed the father that due to the court order the child must come with police. The father informed the police that he “knew this was coming” as he received paperwork to attend the court at Parramatta today, 24 September 2018. The father reluctantly agreed to the CHILD coming with police and accompanied the CHILD to Town H Police Station, keeping her calm. Once at Town H Police Station, nominated place by police recovering child, the CHILD and her father sat in a waiting room inside a secure area of the station… About 10pm the mother arrived… The CHILD was very reluctant to go with her mother and began to cry and backed herself into a corner, tensing her body and fists. Police reinforced to the CHILD that due to the order she must go with her mother, which she did… A CAD job was created for police to attend the mother’s address to check on the welfare of the child and the living conditions due to the father’s concerns about the mother’s suitability.[11]

   [11] Exhibit 3, COPS entry for 24 September 2018 created 24 September 2018, narrative 1 of 2

7. The Police records then go on to note:

   On Monday 24^th September 2018, police attended the Suburb A address to check on the welfare of [X]. Upon attendance, she was in bed but was spoken to police. When asked if she was ok, she stated in tears “I want to go back to Dad’s”. Other than being upset she appeared well clothed, fed and had a clean, well kept bedroom. The home was in very good condition, freshly renovated and clean. The child’s mother and step-father were accommodating to police and there were no other issues sighted. [12]

   [12] Exhibit 3, COPS entry for 24 September 2018 created 28 September 2018, narrative 2 of 2

8. Dr K’s notes for 6 September 2018 read:

   Brought in by father Mr Foote as [X] has now chosen to live there in past 2 days due to [X]’s reporting of ongoing abuse from Ms Wicks’s partner Mr F – “shouts at me all the time” – “I can’t stand it any more”.

9. On 3 October 2018, the mother took [X] back to Dr K for review. The notes read:

   Mother [increased] via GP to 40mg fluox as she had been “in a pretty low mood” about not living with her dad at present, been stressed by exams…

10. What is notable is that [X]’s stated views do not appear to have changed much since before the father commenced proceedings in August 2017. What is also notable is the manner in which the child seems to have been involved in the proceedings.

11. At the interim hearing on 13 September 2017, part of the evidence before the Court was a Counselling Report from Ms D dated 10 September 2017. [X] had been referred to counselling by her mother to support her with feelings of anxiety in connection with moving to a new school. The first session was on 24 February 2017.  The therapy ended at some time before the interim hearing but after [X] had been living with the father in Town H. The report notes as follows:

    Escalating anger and self blame. Anger towards her mother, for trying to recover [X] and the subsequent Family Law Court proceedings. [At the time, [X] was living with her father. This was subsequent to the father retaining her in July 2017 and prior to the orders of 13 September 2017. It was the father who commenced proceedings, not the mother. It is interesting that [X] blames the mother for the proceedings. The session notes for 4 August 2017 indicate that [X] had been “eavesdropping on dad’s conversations”. She knew she was not supposed to, listening to the conversations caused her to feel angry and distressed. It is clear from the CDC Memorandum to the Court dated 13 September 2017 that [X] had not spent time with her mother, except on one occasion supervised, in the 6 weeks preceding the interviews]. Internalising self blame as feeling of anger have not dissipated despite [X] having achieved her desire of living with her father.

    …

    Throughout the course of her therapy, [X] became increasingly fixated her relationship with her mother (sic) and how this impacted upon her…

    However, as therapy progressed, there was a shift from the original referral, which was with regard to [X]’s anxiety and transitioning to high school, to [X]’s increasing anger towards her mother over iPad time, her mother’s relationship with her step-father, and [X]’s desire to live with her father. Approximately 5 months into therapy, [X] refused to return home with her mother and has been living with her father ever since.

    Towards the end of therapy, [X] became fixated on her anger towards her mother and began to disengage with therapy…

    [X] expressed confusion that the move that she had wanted had not resulted in her feeling happy and she expressed that she felt “stressed” and unwell. [X] spoke about her perceived understanding of the Family Law Court process and increasingly attributed a significant amount of power to her mother, to be able to influence everyone around her, and this was a continued source of distress to [X]. [X] would not engage in any discussion as to whether her concerns were based in fact or not.

    As a result of [X]’s increasing anger and withdrawal, as well as her move to Town H, a decision was made to cease therapy at this time.

    … [X]’s perception of her life being exactly as she wanted, as soon as she moved in with her father, has not come to pass and this is a source of confusion and distress for [X]…

1. While no specific documents were tendered which outlined [X]’s stated views at the final hearing on 9 August 2018, those views were the subject of evidence through the Child Dispute Conference Memorandum to the Court dated 13 September 2017[13]. The memorandum read as follows:

   [13] This was a document relied upon by the Independent Children’s Lawyer at final hearing

   11. Mr Foote said that  [X] (sic) had been threating to run away from Ms Wicks for the past 12-18 months. He said that she had said this to her previous school and a previous counsellor. He said that he had made  [X] (sic) promise him not to run away but “if things get bad at home to ring me and I’ll come and get her.” He said that he retained  [X] (sic) from 27 July 2017, which he only expected to be a short period of time, but Ms Wicks “made a mountain out of a molehill” and  [X] (sic) remained with him. Mr Foote said that  [X] (sic) told him she did not want to live with Ms Wicks because of arguing between Ms Wicks and her partner, and because Ms Wicks and her partner were not encouraging or nice to her and put her down.

   …

   16. … Ms Wicks said that  [X] (sic) had previously said that she wanted to run away, but she did not think that she would actually follow through with this threat, and neither did a previous psychologist  [X] (sic) attended. Ms Wicks stated that  [X] (sic) idealised Mr Foote’s living environment, because she did not have to do house chores there and he gave her things that she wanted.

2. At the hearing of the ‘threshold’ issue on 21 March 2019, the father tendered a number of school records from School G High School, including counselling notes for [X]. It was part of the father’s argument that the changed circumstance is that [X] has finally acted on her threat to run away, a threat she had been making for some time. Also peppered throughout the records, particularly the counselling notes are references to [X] wanting to harm herself, her mother and to live with the father.

3. Some of those school records read as follows:

   a)25 October 2017, Summary Profile – Primary:

   [X] often practises work avoidance… [X] demonstrates a defeatist attitude. She believes she can’t before she attempts. She can become quite vocal if she feels like she’s being pressured or if she doesn’t like how things are going…

   [X] has a difficult time socialising and does not have the skills required to make friends, relate to others and express dissatisfaction appropriately. She discussed private things publicly – topics that are not appropriate for the peer age group (self harm, private family matters, her mental health, etc). [X] is unable to be calmed and will yell and scream.

   [X] will go into a rage (her way to describe her behaviour when angry) and when this happens she upturns tables and chairs and runs away from the classroom and hides. She has self harmed at school (scratching her face and arms with a sharp stick)…

   [X], when happy can be a hardworking and compliant student. She is easily discouraged and very quickly becomes frustrated. She expresses herself clearly. She can be difficult to calm, once she is upset. She becomes fixated on events, even when they are well in the past, claiming inability to cope. She will yell and scream and has been known to physically hurt other children.

   b)Notes from 12 March 2018:

   Phone call from Mr Foote

   Mr Foote is concerned about how [X] is doing and thinks she’s sliding into a deeper depression.

   … He hasn’t been able to get her back in the pool since the incident halfway through last year. She totally lost interest in everything. Mr Foote has been letting her have iPad time so she can relax and chill out, which is helping her to escape reality…

   [X] isn’t interested in doing homework and has never been big on that…

   c)Counselling notes 22 March 2018:

   … [X] appeared quite agitated… said she was feeling upset and not coping... said she was wasn’t going to give mum and Mr F a month anymore, and said things had to change tonight…[X] said she has talked to a number of counsellors in the past but said it hasn’t helped the problem, and said the only thing that will help is living with dad… [X] was very resistant to any strategies of how she could change her behaviour, or strategies to help her feel better…

   d)Counselling notes 14 May 2018:

   …[X] said she had thought about bringing a knife to school tomorrow and stabbing herself in the car park…[X] also made comments about hurting her mum… [X] said she thinks there is another court case in two weeks to decide where she lives, and made a comment about preferring to die rather than go back with mum. [X] was resistant to attempts to talk positively about mum, and to look positively towards the future.

   e)Counselling notes 7 June 2018:

   [X] said that a week or two ago she packed her valuable and a change of clothes and brought them to school. She said she planned to leave straight after roll call but her friend Ms P convinced her to stay, so said she left Period 5 instead. … She said she told her dad what she was doing so he wouldn’t worry when he came to pick her up from school and she wasn’t there…

   f)Counselling notes 22 June 2018:

   [X] said she was furious about her mum taking her phone…

   Talked about wanting to kill mum and Mr F. She mentioned the idea of cutting their throats with a knife…

   [X] said that she has clothes in her bag and was thinking about running away today.

   [X] talked more about not wanting to live with mum and Mr F.

   g)Counselling notes 26 February 2019:

   [X] said that she is feeling very down and angry at the moment...

   Has had numerous arguments with Mr F since around the start of term. Talked about how much she doesn’t like Mr F…

   [X] has had recent suicidal thoughts… She said that she has thought about collecting sleeping pills and depression pills and taking an overdose.

   Has also though about stabbing herself with a knife, but knows she would not go through with this.

   [X] said mum and dad are going to court again on 21 March.

   [X] sees dad every Thursday and every second weekend. Wishes she could live with him and go to Town H HS.

   [X] sees dad

4. The Court understands that [X] had been attending upon the following[14]:

   a)Dr K, Psychiatrist, in relation to [X]’s psychosis, oppositional defiance disorder and Autism Spectrum Disorder;

   b)The … Services Team;

   c)… speech and occupational therapy;

   d)Paediatric reviews with her paediatrician; and

   e)The … Foundation (Centre for Autism) in regard to providing advice regarding the NDIS funding.

   [14] At the time of her ‘running away’ or prior

5. The mother was the parent primarily responsible for engaging [X] with these services. It was the mother’s evidence at final hearing in August 2018, that the father does not engage with the child’s treating specialists and social workers, and that he does not have an understanding of how [X]’s autism affects her and how she vocalises her concerns.

6. The father tells the Court that he disagrees with the mother’s assertions as to [X]’s emotional level. He deposes that:

   It is my belief that [X] is emotionally at a younger end of a 13-year-old. Even though [X] has been diagnosed with Autism Spectrum Disorder (ASD) and Oppositional Defiance Disorder (ODD), and has also been diagnosed with depression and anxiety, she is fully capable of making informed decisions, including relating to where she wants to live. I am confident that there will be medical and other expert reports to support this assertion.

7. Unfortunately for the father, there is no medical or other expert evidence to support this assertion in his most recent affidavit. Indeed, if one takes the assertion to the extreme, the father potentially deems [X] fully capable of making an informed decision to run away, self-harm and to harm others. This cannot be what the father meant. Even if there was expert evidence which opined that [X] “is fully capable of making informed decisions” these would still be matters which the Court would need to consider in light of all of the other evidence.

8. It is the Court’s finding that the single act of running away from school and travelling to her father’s home is not a changed circumstances sufficient enough in the Court’s determination to ‘re-open’ the parenting proceedings.

9. What is of significant concern to the Court is the father enabling [X] to act in this manner and supporting her unsafe behaviour. Instead of trying to resolve the issue with the mother, particularly through a therapeutic pathway with [X] being the centre piece of that pathway, the father chose to empower her by supporting her poor choices.

10. It is clear that had the father had [X]’s best interests at the forefront of his mind and the capacity to understand and accept her special needs and the way that she acts out, he would have realised after retaining her in July 2017 that this is not what was in [X]’s best interest, and he would not have acted in a similar manner in September 2018. Had he taken the time to properly inform himself and consider that even after living with him as she did in July to September 2017, [X] was still unhappy, angry and troubled, that this was not a simple issue of naively and blindly following [X]’s wishes.

Conclusion

1. The Family Law Act1975 itself promotes a pathway for settlement of disputes that is not litigious[15].

   [15] E.g. s12A(b)(c), s13A(1)(b); s60B(2)(c) and (d); s60I(1);

2. When orders are made, parties are expected to comply with them. It is after all, an order of a Court. For parents to decide that they will act in a manner which is not only inconsistent with a Court order, but contrary to it, and not to urgently seek alternate dispute resolution or indeed a variation or suspension of orders that they see as somehow not in a child’s best interests, is to be acting in a delinquent manner and not in a child’s best interest.

3. The father did exactly this:

   a)He chose not to pursue his application for the child to live with him and not to attend Court when the Second Final Orders were made. He was advised by the then Independent Children’s Lawyer that the proceedings were listed for an undefended final hearing on 9 August 2018, and he was provided with the orders which that lawyer sought;

   b)He chose to retain [X] contrary to the Second Final Orders and not apply to the Court to vary, discharge or suspend that order on an urgent basis; and

   c)He chose not to appear in Court when the mother’s recovery application was heard and determined.

4. The father has not, through his evidence or the submissions made on his behalf, explained his actions. All that he has expressed, is remorse at not appearing in Court on the hearing of the recovery application. 

5. Although the Final Orders were made on an undefended basis as against the father, the chronology of proceedings evident from the Court file shows that the orders were not entered into at the first available opportunity, but rather after several steps were taken in the proceedings.

6. While the Court did not have before it all of the evidence presently relied upon, [X]’s stated views were certainly a matter in respect of which there was some evidence. The mother’s trial affidavit, read in the proceedings, contained detailed evidence about [X]’s behaviours, including her threats to run away and wish to live with the father, and the mother’s insight into those behaviours.

7. Both parties were ably represented during the second trench in the parenting dispute up to the time the father filed his Notice of Discontinuance. The father has been legally represented throughout the third trench of litigation and except for the recovery application hearing, he has attended Court on all other occasions.

8. The agreed facts[16] between the parties show that [X] is able to enjoy a relationship with the father while living with the mother, and that from time to time she has expressed a wish to spend more time with the father.

   [16] Exhibit 4

9. [X]’s life has already been the subject of much turmoil over the last two years. Further litigation as to her living arrangements is likely to be the last thing this child is in need of. What she is in need of is a significant reduction in the parenting conflict, and collaboration between her parents for her well-being. She does not deserve to be treated as a pawn in the parenting dispute. She is a teenager with special needs who was already struggling with significant disruptions and changes to her routine. She does not appear to like to be told what she is permitted to do and what she is not permitted to do.

10. In weighing up the benefits to the child of allowing the matter to be contested in a fresh hearing against the detriment of her being again involved in the stresses of litigation, the Court finds that on balance the best interests of the child are served by the father’s Response being dismissed.

11. The interests of the child in not being the subject of further litigation is more powerfully in her welfare than to allow the application to continue. As such, the father’s Response is dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 3 May 2019