Yuen & Ainsworth
[2022] FedCFamC1F 1025
Federal Circuit and Family Court of Australia
(DIVISION 1)
Yuen & Ainsworth [2022] FedCFamC1F 1025
File number(s): BRC 170 of 2021 Judgment of: JARRETT J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – parenting – where the applicant contends there has been a significant change of circumstances which would provoke a fresh inquiry into what arrangements are in the best interests of the child – where only one of the facts alleged by the applicant is identifiable as a change – where that change does not persuade the court further litigation is in the child’s best interests Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Defrey & Radnor [2021] FamCAFC 67
Elmi & Munro (2019) FLC 93-912
Marsden v Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
Shan & Prasad (2020) 61 Fam LR 440
Stern & Colli [2022] FedCFamC1A 95
Division: Division 1 First Instance Number of paragraphs: 84 Date of last submission/s: 26 October 2022 Date of hearing: 26 October 2022 Place: Brisbane The Applicant: In-person The Respondent: In-person Solicitor for the Independent Children's Lawyer: Ms Berck ORDERS
BRC 170 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YUEN
Applicant
AND: MR AINSWORTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JARRETT J
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS THAT:
1.The application filed on 7 January, 2021 and the application in a proceeding filed on 27 May, 2022 are dismissed.
2.By 4.00pm on 20 January, 2023 the respondent file and serve written submissions exceeding no more than 10 pages in length addressing the relief sought in paragraph 2 of the response filed on 3 February, 2021 and paragraph 4 of the response to an application in a proceeding filed on 3 July, 2022.
3.By 4.00pm on 10 February, 2023 the applicant file and serve written submissions exceeding no more than 10 pages in response to the respondent’s submissions delivered in accordance with order 2 hereof.
4.In the event that either party seeks a further oral hearing in respect of the relief sought in paragraph 2 of the response filed on 3 February, 2021 and paragraph 4 of the response to an application in a proceeding filed on 3 July, 2022, that party must include a statement in their written submissions to that effect.
5.Otherwise the response filed on 3 February, 2021 and the response to an application in a proceeding filed on 3 July, 2022 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yuen & Ainsworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 16 July, 2020 a judge of the Federal Circuit and Family Court of Australia (Division 2) made parenting orders in respect of the parties’ daughter X, now aged almost 7 years. Those orders do not seem to have quelled the conflict between the parties to these proceedings for very long.
By her application filed on 7 January, 2021 the applicant, X’s mother, seeks that the 2020 orders be replaced with different parenting orders for X. The respondent, X’s father, opposes the application. In his response filed on 3 February, 2021 he seeks orders:
1That the mother's initiating application filed 7/1/2021 be dismissed.
2That the mother be prohibited from filing any further applications until the appeal is heard.
3That the orders of His (sic) Honour Judge Coates dated 16/7/2020 be affirmed and continue, and that the mother follow those orders correctly.
On 27 May, 2022 the applicant filed an Application in a Proceeding in which she seeks an order that the respondent be psychiatrically examined and a report prepared in respect of that examination, at the respondent’s cost. The respondent opposes that application too. Further, in his response filed on 3 July, 2022 to that Application in a Proceeding, he seeks an order that the applicant be “declared a vexatious litigant and be prohibited from filing any further applications without leave of court”.
Included in the initiating application was an application for interim orders dealing with various matters. That interim relief was dealt with, in part, by orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2).
In October, 2021 the outstanding applications were transferred to this court because the applicant alleged that there was a risk of sexual abuse to X. At the same time, an Independent Children’s Lawyer was appointed for X. Another order, made on 12 April, 2022 dealt with X attending Country P language lessons.
On 26 May, 2022 a judicial registrar ordered that:
1.The orders sought in the Response by the father on 3 February 2021 be listed for a discrete hearing on a date to be advised.
By a further order made on 12 July, 2022 the applicant’s Application in a Proceeding filed on 27 May, 2022 was adjourned to a date “after the determination of the father’s application for summary dismissal of the mother’s Initiating Application”.
Finally, another judge of this Court made orders on 1 August, 2022 setting the application down “for a Rice & Asplund Hearing”. The order noted that the parties had already filed and served the required material and recorded that they might by a certain date file and serve written submissions upon which they sought to rely.
The present applications are filed against a long history of litigation between these parties commencing in 2016. The final parenting orders made on 16 July, 2020 followed a three day trial at which each party was represented by counsel and the court had the benefit of an independent children’s lawyer. Reasons were given for the making of those orders: Ainsworth & Yuen (No.2) [2020] FCCA 2214. The applicant appealed those orders. Her appeal was dismissed: Yuen & Ainsworth [2021] FamCAFC 86.
Ample legislative authority exists for the determination of a particular issue or issues prior to a more fulsome hearing of the application before the court: see for example ss 69ZR(1) and 69ZQ(1)(a) of the Family Law Act 1975 (Cth) and r 10.10(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Additionally, power exists for a party to apply for the summary disposition of an application or response: r 10.09 of the Family Law Rules.
It has long been recognised that although parenting orders may be expressed to be final (in that they are not expressed to be until further order) they nonetheless may be suspended, discharged or varied by the court, or alternative orders put in their stead, if the court is satisfied that there has been a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of the child or children who are the subject of the orders. Put another way, such orders might be the subject of further orders if “there has been a material change in circumstances which indicate that it would be in the best interests of the child for there to be a reconsideration of the parenting orders”: Elmi & Munro (2019) FLC 93-912 at [33]-[38].
No doubt, what was intended by the order for “a Rice & Asplund Hearing” was that there be a hearing of the issue as to whether either party had established that there had been a change in circumstances since the making of the orders on 16 July, 2020 sufficient to warrant revisiting X’s welfare. What is not clear is whether it was intended that it should be dealt with under r 10.09(1) or 10.10(1) of the Family Law Rules. Whatever is the case, the parties seem to have appreciated that the contest before the court was whether the applicant made out that there had been a change in circumstances of the necessary quality for the court to conclude that it was in X’s best interests for there to be further litigation about her arrangements.
Quite unhelpfully, in her written submissions, the applicant sought “leave to produce any material that is now available and should be put before the court for the court to make proper decisions in accordance with the case law”. Consequently, I have had regard to five affidavits sworn by her and filed on 7 January and 10 March, 2021 and 27 May, 26 July and 12 October, 2022. I have also had regard to an affidavit deposed by Mr O filed on 9 October, 2021.
The respondent relied upon a list of material set out in his case outline filed on 23 October, 2022. I have had regard to that material.
The ICL relied upon the final orders made in 2020, the reasons of the trial judge for making the current orders and the reasons of the Full Court when dismissing the applicant’s appeal from the 2020 orders.
The principles
In Rice & Asplund (1979) FLC 90-725, Evatt CJ said (at 78,905):
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change 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 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….
(citations omitted).
In the more than 40 years since Rice & Asplund was decided it has been considered, explained and applied on countless occasions. Its authority is not now open to question: Elmi & Munro (above) at [24]. Notably, in Marsden v Winch (2009) 42 Fam LR 1 the Full Court of the Family Court of Australia said:
57. In Miller & Harrington (supra) the Court posed the question:
105. Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
58.That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
These remarks were applied or referred to without disapproval by subsequent Full Courts in Searson & Searson (2017) FLC 93-788 and Shan & Prasad (2020) 61 Fam LR 440 at [41].
Most recently, in Defrey & Radnor [2021] FamCAFC 67 after considering what was said in SPS and PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington (2008) FLC 93-383 at [105] and Marsden v Winch at [58] the Full Court summarised the law concerning Rice & Asplund as follows:
19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20.It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
These passages were applied by a subsequent Full Court in Stern & Colli [2022] FedCFamC1A 95.
My task then, having regard to the earlier order and to the reasons for and the material on which that order was based, is to determine whether either party establishes that there has been a change in circumstances since the making of the orders in 2020, or at least a prima facie case of such a change in circumstances and thereafter to assess whether or not those changes are sufficient to provoke a new enquiry into X’s welfare.
Consideration
The affidavit filed first in time on 7 January, 2021 by the applicant runs to 49 pages of deposition and another 218 pages of annexures. It was filed in support of an application for a stay of the July, 2020 orders pending appeal. It deals in part with matters that the applicant says have occurred following the making of the July, 2020 orders as well as reiterating matters that were in evidence before the trial judge.
Within the post order category, the applicant complains that:
(a)X does not tell the applicant what she has done in the father’s house when she has been with him – because the father and his family, the applicant says, tell X not to;
(b)X’s behaviour is oppositional and aggressive;
(c)X has been exposed to sexualised behaviour such that the applicant has sought advice from the police;
(d)the respondent has contravened the orders in that he:
(i)still (or sometimes) showers with X;
(ii)does not observe the telephone contact times set out in the orders;
(iii)makes telephone communication between the applicant and X generally difficult – something she argues is psychologically and emotionally abusive of X and denies X the opportunity to report serious concerns, placing her at risk;
(e)the respondent is “enforcing” the orders about the applicant’s telephone contact with X when X is in his care;
(f)the respondent does not interpret the July, 2020 orders correctly, but rather in his own way, particularly in respect of X’s time with him commencing in December, 2020;
(g)this is the same situation from early 2016 throughout the whole of X’s life, the respondent lies, does not compromise, and cannot be communicated with.
(h)the respondent harasses her “about phone contact with [X]” by reason of the times he calls for X to speak with the applicant when X is in his care;
(i)the respondent exerts control by spending time with X over the telephone, (between 30 mins and 109 minutes according to the applicant’s evidence) “against her wishes”. Her evidence is such that it seems that the 109 minute phone call was a one-off occasion.
As to the matters dealt with in the affidavit that were dealt with by the trial judge, the applicant repeats her claims and submissions about the respondent’s excessive alcohol consumption, drug use, mental health issues, failure to provide what the applicant considers is adequate financial support and myriad of other complaints. I will not detail them all. They were matters raised by her in the trial that led to the orders of 16 July, 2020. They are not changes in circumstances.
The second affidavit filed by the applicant on 10 March, 2021 is expressed to be filed in support of her notice of risk filed about two months earlier. That affidavit is 68 pages in length (12 pages of deposition and the balance annexures). The theme of this affidavit is that the respondent has consistently contravened the July, 2020 orders and that he has used the contravention process against the applicant in an oppressive and harassing way. There is no evidence that, despite her extensive complaint about the respondent’s contraventions, she has ever commenced a contravention application against him.
The applicant’s third affidavit filed on 27 May, 2022 was filed, it seems, in support of her application that the respondent be psychiatrically assessed on the basis that he suffers from some cognitive impairment. The content of this 45 page affidavit ranges over the same subject matter as the first, but with a different emphasis upon various subjects such as financial support and the involvement of the respondent’s sister in X’s life.
The applicant’s fourth affidavit was filed on 26 July, 2022. It is 315 pages in length, including annexures. It seems to be the evidence-in-chief upon which the applicant relies to make good her case of change of circumstances. So much was noted in the orders made 1 August, 2022. The only obviously new material within that affidavit concerns X’s health conditions, ranging from a minor runny nose to her contracting Covid-19, and the conflict that ensued between the parties particularly when X contracted Covid-19. That episode highlights the ongoing inability of the parents to co-parent X. That was a central theme of the trial judge’s judgment when he made the orders in July, 2020. There are other matters raised within the affidavit concerning the parties’ disagreement about the need for X to have an operation. She gives evidence about X having a “sleeping problem”. She also gives evidence about the parties’ disputes about a device that X uses to assist with her hearing. Under the heading “Risk of Sexual Abuse” the applicant swears:
80. In [mid-2022], [X] told me that the father is planning to make a bunk bed and put in her bedroom. She said to me that she would be sleeping on the top and the father sleeps at the bottom, therefore [Ms M] can sleep in the father’s bedroom.
a) I concern as to the father sleeps in the same room with [X]. I do not understand why it was not [Ms M].
b) I refer to my previous affidavit regarding potential sexual abuse.
c) I refer to the police report where the child says,” daddy did things upset me” in [Country P] at the 2019 police interviews.
d) I concern that the father’s affidavit in June 2020 is inconsistent with the police report. In his affidavit, he writes,
“[In mid-2019] at approximately 6pm, two female Police officers came to my front gate. I gave them my name and date of birth and they said “we are finalising the matter.”
The allegation that X talked about a bunk bed is new, but the balance of the paragraph, to the extent that it is evidence, is not new. The inconsistency highlighted in paragraph 80d) is not new and something that was apparent at the time of the trial in 2020.
She also gives evidence, in the most general of terms, alleging that the respondent loiters in her vicinity, stalks her and harasses her. She has complained to the Queensland Police about these matters. The advice she received was to apply for a domestic violence protection order. Despite that advice she chose not to do so for the reasons set out in her affidavit.
In her fifth affidavit filed on 12 October, 2022 the applicant sets out what she has also filed as her written submissions. In addition, she gives evidence in answer to the respondent’s evidence and sets out some evidence about investigations into whether X has autism. She records the respondent’s historical attitude towards the suggestion that X suffers from anxiety problems.
In addition to her affidavit material, the applicant has distilled her case in her written outline filed on 12 October, 2022. She identifies seven broad areas in which she argues there have been changes of sufficient quality to warrant fresh parenting orders, whether taken separately or one with another or others. Adopting the headings used by her in her submissions, I will address each seriatim.
Extra-curricular activities
At the trial of these proceedings, X’s involvement in extracurricular activities and the willingness of the respondent to facilitate X’s engagement in them was an issue about which he was cross-examined. He gave evidence that he would facilitate X’s attendance at Country P language lessons. It was clear that she was also engaged in other activities from time to time. To deal with the issue of X’s attendance at extra-curricular activities, the trial judge made these orders:
(6)That the mother is hereby restrained from enrolling the child in any additional extra-curricular activities without the consent in writing of the father.
(7)That in the event the child participates in any extra-curricular activities on weekends, the father shall facilitate the child attending at least one extra-curricular activity on any weekend the child is in his care.
There was no specificity given to the activity that the respondent was to ensure X attended on the weekends she was with her father. And there is good sense for that approach. Given X’s age it would not be surprising if her interests changed over time or the activities in which she engaged on the weekends were seasonal in nature. There would be little point in specifying particular activities.
At the appeal against the July, 2020 orders, the applicant advanced a ground of appeal to the effect that order (6) above was plainly unreasonable and unjust. Of that argument, the Full Court said this:
89In relation to (b), nothing on the face of the order indicates that it is unreasonable or unjust. At the time of trial the child was participating in a number of extra-curricular activities. There is nothing in the order which would preclude her continuing with those extra-curricular activities but if there are to be additional ones, the mother needs to obtain the father’s written consent.
Within that context then, the applicant says that a change of circumstances has come about because the respondent did not take X to Country P lessons until an order was made for him to do so on 12 April, 2022. Even though the respondent’s failure to take X to Country P lessons does not appear to have been a contravention of the 2020 orders, it seems that the problem was cured by the April, 2022 order. I reach that conclusion notwithstanding that the applicant swears in her affidavit filed on 26 July, 2022 (for example):
48.1 The father after this order was made, still attempt not to taking [X] to [Country P] class, or make her to do online class that the school does not have, and I would not know whether he facilitated because I would not know whether [X] was behind screen undistracted. He sent me an email on 27 April 2022, saying,
“…Let me know the login details for [X's] online [Country P] lesson for this Sat. Either that or I don't mind to continue taking her to [sports] lessons instead because I think it has been really good for her...”
Further, in her written submissions the applicant says:
2.1 m) Whilst the father is complying with the order, and that changes of circumstance has been rectified, the father’s attitude towards obeying court order has not changed. That is a significant change of the circumstances.
I reject the applicant’s argument that the difficulties over X attending Country P language lessons is a change in circumstances for the purposes of the present application.
It is uncontroversial that the applicant enrolled X in extra-curricular lessons. The respondent commenced a contravention application against the applicant because she did that without his consent. She argues now that her actions were not a breach of paragraph (6) of the orders and that the bringing of the contravention application by the father is a change in circumstances since the making of the final parenting orders in question. I reject that argument. The bringing of the contravention application does not represent a change in circumstances. Rather it is the engagement by the respondent of the curial process of the court to deal with what he alleges to be a contravention of the relevant order.
The applicant also argues that there is a relevant change in circumstances as a result of the respondent ceasing X’s “access to [music] lessons, causing her to fall behind in her [music] studies”. The evidence about this demonstrates that the applicant’s stance is curious. X started to receive some informal music tuition from her aunt when she was in the respondent’s care. Upon finding out about that, the applicant organised formal music tuition from “the most qualified professional musician and teacher” she could find in Brisbane. She also took steps to purchase an instrument. The applicant says that upon the father finding out what she had done, he “stopped [X] from playing [music] at his place”. This is not a change in circumstances. It is just an example of the ongoing conflict between the applicant and the respondent and their inability to adopt a co-operative co-parenting relationship for the sake of their daughter. That was the state of affairs before the trial judge in 2020 and it remains so now. Whilst the applicant criticises the respondent’s petulant action of ceasing X’s access to informal music tuition with her aunt (if that is what actually occurred), her actions smack of brinkmanship and one-upmanship and are equally liable to criticism.
The applicant makes complaint about sports lessons for X. She says that prior to the orders, she was taking X to weekly sports lessons. She says that the respondent told the court (presumably at the trial) that he was teaching X after watching YouTube videos. Thus, these were matters before the trial judge. The applicant complains that the respondent has now stopped teaching her and she is unable to perform “after four years of learning”. Presumably the applicant is there referring to the sports lessons to which she was taking X.
This is not a change in circumstance let alone a significant or material change in circumstance that warrants the revisiting of X’s welfare.
The applicant also alleges that since the July, 2020 orders were made, the respondent has stopped X from attending various lessons and classes. Consistently with what is stated in the extract from the Full Court’s judgment above, the applicant submits that “all these extra-curriculum activities were started long before the final trial in July 2020.” Whilst it might be the case that the respondent gave oral evidence at the trial to the effect that he would enjoy taking her to all her activities, the order the court made required him to take her to only one activity on the weekends she was with him. Despite the applicant’s argument, this is not a change in circumstance let alone a significant or material change in circumstance that warrants the revisiting of X’s welfare.
The applicant alleges that when the respondent does not comply with the court’s orders he denigrates her to X by telling her that the applicant was responsible for his non-compliance. She complains about the respondent making what she says are denigrating comments to X about her organising of events and disparaging comments about Country P. She says both of these will cause psychological harm to the child. However, her evidence does not place these comments at a particular point in time, so it is difficult to say whether they are a change since the orders or whether denigration has been an issue since before the previous orders were made. If the comments were in fact made by the respondent as alleged, it is likely that they do not represent a change in circumstances. I reach that conclusion because the final orders contain an order as follows:
21. That each of the parties, their servants and agents be hereby restrained from:
a. abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and
b. Recording the child and or other persons at changeover.
That order 21a was necessary suggests that denigration was an issue between the parties at the 2020 trial.
Even if I am wrong about that, at best the father’s conduct, if proved, is a matter of contravention, rather than a change of circumstances.
So too, the applicant’s complaint that the respondent has not complied with the court’s orders requiring him to attend a psychologist or providing her the requisite reports pursuant to the orders are matters for a contravention application. They do not signify a change in circumstances.
In her written submissions and her last affidavit, the applicant argues that:
a) The initial family law report by [Ms L], who is […] qualified [in several professions], made findings of credibility and truthfulness of the father, which he has failed to correct or amend such behaviour, as listed above and below. That is a significant change of circumstances of the order of 15 July 2020 in that the order was designed to finalise all matters of parenting, which the father ignores. Therefore, making a significant change.
This argument is misconceived. The relevant material was part of the material before the trial judge in July, 2020 and was considered by him.
Medical and dental issues
The applicant raises a number of medical issues that she says have arisen since the making of the July, 2020 orders.
First, X has been diagnosed with a medical condition and according to the applicant an operation has been recommended for her. She asserts that the respondent has declined to consent to have the child undergo surgery. The applicant asserts that since 2020 the medical condition has advanced. The minimum wait period for the operation is 12 months and the child cannot be placed on the waiting list until both parents consent.
In her affidavit filed on 26 July, 2022 the applicant says she took the child to Q Hospital in late, 2020 for a specialist outpatient appointment with a paediatric surgeon. She had previously consulted with the child’s general practitioner. The general practitioner recommended that she did not require an operation, but the applicant sought a referral to a surgeon regardless. The surgeon recommended an operation to fix the condition.
During the appointment with the surgeon, the applicant says she asked the doctor to call the respondent and explain the need for it to him. The doctor explained that while not life threatening, the issue can cause complications if not treated. The respondent concluded that he did not want X to undergo the operation. The applicant received emails from the respondent complaining that it was the first he had heard of the issue and explaining that he would follow up with the child’s GP for further information. The applicant says she believes she told him over the phone at the time of the child’s initial diagnosis.
In her affidavit filed on 12 October, 2022 the applicant broadly rehashes the material from the previous affidavit in less detail but with this additional information:
[3.1] (k):Since the last surgeon’s follow-up appointment, the child had a further ultrasound which revealed that the [medical condition had advanced] since 2020. Having been informed that [X’s medical condition has advanced], and the GP suggest him to liaise with the mother to have the operation done, the father still refuses to allow the child to have operation.
It is uncontroversial that X has developed this medical condition. The parties disagree about whether it needs treatment by surgery or whether it will spontaneously resolve. They have not been able to agree on what to do. They disagree about the advice that has been given by X’s doctors. What is clear enough is that the condition is not critical. The development of the condition is clearly a change in the circumstances that existed at the date of the trial. She did not have the condition at that point (at least of which anyone was aware). She now does. I will deal with what that means in the context of this case later in these reasons.
Second, the applicant alleges that the respondent fails to acknowledge that X has “an anxiety problem”. It is the applicant’s case that that prior to the trial in 2020, X had been diagnosed with Generalised Anxiety Disorder. It is also her case that the respondent refused to accept that diagnosis and said so in his evidence at the trial. She says that since the trial X has been assessed for autism. It was determined that she did not have autism “at this stage”, but consistent with her earlier diagnosis perhaps, she has anxiety that impacts upon her. The applicant now complains that although the respondent attended when the findings of the autism assessment team were made known he “took no interest whatsoever, nor ask any questions as to how [X] can be best assisted by both parents”. She argues that “this is again indicative of the father refusing or denying the findings of expert medical practitioners as what is in [X’s] best interest”.
However, this is not a change in circumstances from what existed at the time the final orders were made. If it is the case that the father does not accept that X does not suffer from anxiety, the position is no different to his position at the trial as deposed to by the mother for the purposes of this application.
Third, the applicant says that X has a sleeping problem, although she does not say when it first manifested. She says in her written submissions:
The father denied the child’s sleeping problem which was addressed by her regular pediatrist (the same pediatrist, [Dr R] of [S Hospital] team for autism assessment). That the sleeping problem is as a result as the anxiety the child suffers by not being allowed to go to bed when she wants to, because the father wants to “spend time” with her, causing the child to attend school on Monday and Thursday mornings without having a shower and teeth brushed, having hair combed, having breakfast, or changing her clothes into her school uniform except to change in the father’s car at school car park.
In her affidavit of 12 October, 2022 the applicant deals with this issue. Her evidence is very unclear. It is difficult to say whether X has been diagnosed with a sleeping disorder or the applicant has received medical advice that the child’s anxiety is impacting on her sleep. It is also very unclear when the problems manifested – whether they are new since the orders or whether the child’s anxiety is a problem which has existed for many years. It is also difficult to differentiate what the applicant describes from the fairly run-of-the-mill difficulties of a child transitioning between two households with parents who are entrenched in conflict and expose her to their conflict.
I am not persuaded on the evidence that X has been diagnosed with a sleep problem. No change in circumstances in this regard is established on the evidence. Allied to this is the applicant’s submission that the way X’s time is arranged under the orders means that she cannot settle X into a routine. These are not changes in circumstances, however. The applicant’s appeal against the orders was dismissed. The orders were made without error.
Fourth, the applicant raises issues concerning X’s dental health. She complains that having made an appointment for a check-up for X, the respondent did not take her. Her check-up was therefore delayed by six months. It is not clear, but it might be that she suggests that the development of several cavities by X was somehow the respondent’s fault because the check-up was missed and not rescheduled by either parent soon thereafter. This complaint then traverses a further complaint about the respondent’s inability or unwillingness to pay child support or buy X appropriate shoes. The gravamen of this complaint appears to be the financial burden for X which the applicant bears with minimal assistance from the respondent. However, the respondent’s willingness to pay for items in relation to the child was in issue and the topic of cross-examination on 14 July, 2020 (pages 96-97). These were all issues at the trial and do not demonstrate a change in circumstances. They represent more of the same dysfunctional co-parenting relationship that confronted the trial judge.
Finally, in her affidavit filed on 26 July, 2022 and again in her affidavit filed 12 October, 2022 the applicant complains that on 22 July, 2022 the respondent took X to school while experiencing Covid-19 symptoms and did not test her. As it turns out, she had Covid-19. The respondent then sought time with X, the applicant says unreasonably. A similar incident occurred, where X had been unwell and the respondent then sought time, in relation to a different illness in 2018.
It is difficult to understand how this could be a meaningful change in circumstances, particularly given that the applicant says it is behaviour that has been occurring since 2018.
The father’s coercion and control
The applicant’s case about this is hard to understand. On the one hand she says that the respondent makes constant demands of her, particularly in relation to telephone time for example, and threatens her that if she does not comply he will bring a contravention application against her. On the other hand she says that what the respondent demands that she does, she is not obliged to do under the orders. She also complains that the respondent does not facilitate telephone time with X in the way in which she would like, or that he unnecessarily interferes with that time. But these are not changes of circumstances as they existed at the time of the July, 2020 orders – they are just more of the same.
The applicant alleges that the respondent prevents X from having investigations of her medical issues, such as her potentially surgical medical condition and sleeping problem, but the applicant’s evidence establishes that she has in fact had those matters investigated. These are not changes in circumstances.
Further, she makes some other allegations about the father’s conduct more generally. For example, she complains about the respondent changing X’s hairstyle in some way when she is with him sometimes. This issue of disagreements over the child’s hair was live at the time of the previous trial: Ainsworth & Yuen (No.2) at [33].
There were also allegations of family violence canvassed during the trial which the applicant now repeats, but it is difficult to understand if the applicant is making allegations of behaviours which have escalated or manifested since the trial or whether she is seeking to relitigate issues covered in the trial. Allied to this are the applicant’s allegations of stalking to which I will come now.
Stalking
The applicant argues that since the July, 2020 orders, the respondent has stalked her and the barrister who appeared for her at the trial who is a friend of hers. The applicant’s evidence is that prior to the current orders, the respondent would “loiter” around her residence and after changeover. She says that he received warnings from another judge at an interim stage to desist from that behaviour. Thus, this behaviour was an issue at the trial. It is not a new issue.
The applicant focusses on a particular period of time from late 2020 to early 2021, although not exclusively. These statements by the applicant, supported by the affidavit of Mr O, evidence behaviour which might be stalking and is probably inappropriate involvement of the child in conflict:
(a)affidavit of applicant filed on 26.07.22:
34. I was informed by [Mr O], my then lawyer that the father had stalked and recorded him on […] 2021 and […] 2021 between 9am to 10am, and again on […] 2021 around 2.50pm at [Suburb T Shopping Centre]. I refer to [Mr O’s] affidavit dated 9 October 2021.
35. [In late] 2021, the father stalked and recorded me and [Mr O] at [U Café] at [Suburb T Shopping Centre], 30 minutes after changeover at a different building. [X] was with the father the entire time.
35.1. [In late], I had a catch-up with [Mr O] at [Suburb T McDonalds] (a few minutes’ walk to […]) before changeover.
(b)affidavit of Mr O 09.10.21 at [2], [3], [4], [5], and [6].
However, these are behaviours that had been commented upon in 2018, according to the applicant. As such, while concerning, it is difficult to say they are a change in circumstances in any sense. The relevant behaviour is simply a continuation of the same conduct considered by the trial judge.
In any event, she took up with the police about these events, as did her former barrister. Neither it seems applied for a protection order despite the applicant’s evidence that the police urged her to do so.
This is not a change in circumstances in the relevant sense. Even if that is wrong, it is difficult to see how the making of different parenting orders for X would alleviate the perceived problem given that it seems to have occurred irrespective of the arrangement of X’s time with her parents. That is especially so when one considers the terms of the orders that the applicant seeks in her initiating application.
The sister’s intervention
At [63]-[78] of her affidavit filed on 26 July, 2022 the applicant alleges that the respondent’s sister is confusing the child’s maternal relationship. She asserts that the respondent’s sister Ms M sees herself as X’s mother. The source of her information seems to be that X has told the applicant that people mistook the aunt for the child’s mother on occasions and that school children in the child’s class have expressed confusion. Also, that the aunt assists the respondent in X’s care. However, she also complains that some of this conduct, and the sister’s involvement, has continued since the child’s birth. It is difficult to say, therefore, that there has been a meaningful change in circumstances.
The applicant resents the involvement of the respondent’s sister Ms M in X’s life. So much is clear from the trial judge’s reasons which record that the applicant sought an order that X only have contact with Ms M once per month. The trial judge refused that order. He recorded that X and Ms M had a good relationship.
The applicant does not establish that the circumstances that existed with respect to these matters have changed since July, 2020.
Mother’s communication with the father
The applicant swears and submits that despite her best efforts, she has not been able to communicate with the respondent about a range of issues. She points to the parties’ disagreements about various lessons and classes, and health issues. She submits that the respondent refuses or neglects to communicate with her in relation to any of these issues and attempts to coerce and control her by bringing contravention applications based upon false allegations, or “denying outright any matter that professionals give advises on, in breach of the father’s parental responsibility in the best interest of the child”.
The applicant’s own evidence does not make good these submissions. Her evidence shows that the parties do communicate, but have different styles of communication. The applicant is voluble in her communication. The respondent is less so. The applicant’s main difficulty, it seems to me, is that on many things the respondent does not agree with the applicant and expresses a different point of view. The issue concerning X’s medical condition provides a good example of this.
These matters do not demonstrate a change in circumstances, but rather a continuation of the circumstances that existed before the trial judge. He recorded that the parties’ communication was difficult but made an order for equal shared parental responsibility nonetheless. The applicant’s appeal directed specifically to this order was dismissed in the Full Court.
Moral Principles
Under this heading in her submissions, the applicant draws together her complaints that I have summarised above and asserts that the respondent is without “moral principles” because he lies to X about the applicant and Country P and does not pay child support or otherwise financially support X.
Conclusions
None of the matters relied upon by the applicant demonstrate a change in circumstances save one matter. That matter relates to the development by X of a medical condition and the dispute that has evolved about that. The medical opinion about the need for surgery is divided as is the parental opinion.
Not all changes bear the requisite quality that demands a fresh inquiry in to the welfare of a child or children already the subject of a final parenting order. This is such a change. It is not, in my view, of such significance that it demands a fresh inquiry into X’s welfare. It is the type of change that is wrought by the passage of time and is part of ordinary human experience: King & Finneran [2001] FamCA 344 at [49]. Children become sick or unwell. That is to be expected. That X has developed a medical condition about which the parents cannot at this point agree does not signify a change in circumstances of the relevant quality. The applicant seeks a wholesale revision of the orders.
I accept the submissions of the independent children’s lawyer that the concerns the applicant raises rely upon historical matters that were either raised, or available to be raised at the trial of the proceedings in 2020.
Moreover, as I have suggested above, some of the applicant’s complaints are more properly the subject of a contravention application.
The issues identified by the applicant in her evidence and submissions, even when taken at their highest demonstrate no more than a continuation of the fractious relationship between the applicant and the respondent and the myriad ways in which that has manifested since the trial.
The applicant does not and cannot establish on her evidence a prima facie case of changed circumstances sufficient to justify embarking on a hearing of her application filed on 7 January, 2021. That application must be dismissed. Consequently, her application in a case filed on 27 May, 2022 must also be dismissed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 20 December 2022
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