FAMILY COURT OF AUSTRALIA

Smith & Holt	[2015] FamCA 64	

FAMILY LAW – PARENTING – THRESHOLD ISSUE – RICE & ASPLUND – Further application by mother following protracted history of litigation and final orders in 2009 – Consideration of the “rule” in Rice and Asplund – Consideration as to the best interests of the children – No significant change in circumstances to warrant re-litigation of substantial parenting issues – No reasonable prospect of any change to current parenting orders – Prospect of children becoming again enmeshed in litigation – Consideration as to prospective detrimental effect on the children – Mother’s application dismissed.	

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA	

Goode & Goode (2006) FLC 93-286
Hartnett & Sampson (No. 2) [2009] FamCA 769
Hartnett & Sampson (No. 2) [2011] FamCAFC 221
Marsden v Winch (2009) 42 Fam LR 1
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Morton and Berry [2014] FamCAFC 208
MRR v GRR (2010) 240 CLR 461
Poisat [2014] FamCAFC 128
Rice & Asplund [1978] FamCA; [1979] FLC 90-725	

APPLICANT:	Ms Smith	

RESPONDENT:	Mr Holt	

Independent children’s lawyer:	Legal Aid NSW Sydney Central	

FILE NUMBER:	SYC	526		of	2013	

DATE DELIVERED:	12 February 2015	

PLACE DELIVERED:	Parramatta	

PLACE HEARD:	Sydney	

JUDGMENT OF:	Foster J	

HEARING DATE:	4 February 2015	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr De Robilliard	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Karagiannis	

Orders
(1)	That the mothers Application Initiating Proceedings filed on the 5 February 2013 be dismissed.
(2)	That the proceedings be removed from the pending cases list. 

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

FILE NUMBER: SYC 526  of 2013

Ms Smith 	
Applicant

And

Mr Holt 	
Respondent

REASONS FOR JUDGMENT
1.	The present application before the Court is yet another parenting application arising out of the relationship of these parties.
2.	The mother in her initiating application filed on 5 February 2013 in the Federal Circuit Court of Australia seeks parenting orders in relation to the children of the parties’ relationship, B born in 2003 and C born in 2004.
3.	In summary the mother seeks final orders that provide:
a)	That the mother have sole parental responsibility for the children;
b)	That the children lived with the mother;
c)	That the children spend time with the father during school term on alternate weekends from Friday after school to Monday before school and each alternate Wednesday from after school to the commencement of school Thursday together with half school holidays and other special days;
d)	That where changeovers are not at school they be outside the D Church, Suburb E;
e)	That the children have telephone contact with the father each Tuesday Thursday and Saturday between 5:00pm and 6:00pm when they are in the mother’s care and telephone contact with the mother on Saturdays between 5:00pm and 6:00pm when in the care of the father.
4.	In her initiating application the mother sought interim orders in relation to the children in summary as follows:
a)	That the children attend F School Suburb E;
b)	That the father be restrained from enrolling the children in any other school;
c)	That the children lived with the mother and spend time with the father;
d)	That telephone contact occur between the children and the mother in accordance with orders made on 25 August 2009.
History
5.	The course of litigation between the parties has been voluminous and ongoing.
6.	Prior to the present application final parenting orders were made by Jordan J on 25 August 2009, (Harnett & Sampson (No. 2) [2009] FamCA 769). In summary those orders relevantly provided:
a)	That the mother and father have equal shared responsibility for the children;
b)	That the children live with the father when not living with the mother;
c)	That in the event that the mother resides in Sydney the children live with the mother and father on a week about basis, with changeovers occurring after school on Fridays, and for half the school holidays;
d)	That the mother and father have telephone contact with the children when the children are in the care of the other parent;
e)	For each of the parents to have time with the children on special days and occasions;
f)	Other specific orders in relation to communication between the parents, ability to obtain school reports and other documents, facilitating the attendance of each of the parents at the children’s school and churches and notification to the other parent in relation to any medical or other emergency.
7.	The mother appealed the orders of his Honour. Her appeal was dismissed by the Full Court on 24 November 2011 for want of prosecution (Hartnett & Sampson (No. 2) [2011] FamCAFC 221). In the reasons for judgment of the Full Court a history of the litigation between the parties was set out as follows:
History of litigation between the parties 
3.	The parties commenced a relationship in July 2000 when both were living in Sydney. They married in 2001 and their first child was born in early 2003. They separated in August 2004 when the mother moved with their first child to Victoria, and the father remained living in Sydney with his son from an earlier relationship. Their second child was born in late 2004 (that is, after separation). 
4.	Orders were made by Moore J on 21 March 2007. Essentially those orders provided for the children to live in Sydney with incremental increases in the time that the children would spend with the father leading to an equal shared care arrangement by February 2009. The effect of those orders was that the mother would have been required to live in Sydney rather than in Victoria. 
5.	An appeal against those orders was determined by the Full Court on 22 November 2007, with the matter being remitted to Moore J for re-determination (see Sampson & Hartnett (No. 10) (2007) FLC 93-350). 
6.	In the event and following further litigation, the parenting proceedings were re-heard by Jordan J over 14 days in the period from April to August 2009. 
7.	On 25 August 2009 Jordan J made orders which were not dissimilar from those made by Moore J in that they provided for the children to live in Sydney on a week about basis if both parents lived in Sydney, or with the father if the mother remained in Victoria, but with school holidays and other times with her. 
8.	On 22 September 2009 the mother (acting on her own behalf) filed a Notice of Appeal against Jordan J’s orders. This is the appeal which the father now seeks to have dismissed and which the mother wishes to be permitted to pursue. 
9.	It appears that the mother managed to file the required draft appeal book index by 14 October 2009. At the various procedural hearings which then followed before the Appeal Registrar, it emerged that the mother considered she was unable to provide the transcript of the hearing before Jordan J. Uncertainties also emerged in relation to the material which was actually before his Honour. 
10.	On 3 February 2009 the Full Court heard an application by the mother for the Court at its expense to provide transcript of the trial before Jordan J. On 4 November 2010 the Full Court refused that application. In its reasons for judgment the Full Court examined the 13 grounds of appeal then proposed by the mother and concluded: 
80.	It is impossible to say that there may not be parts of the transcript to which the [mother] could direct the Court in support of her appeal. However, we have not been satisfied that they are of such a compelling nature that they would be likely to affect the outcome weighed against the cost of provision of the transcript and any likely benefit of it. In any event, as we have previously noted, the Full Court hearing the matter retains the discretion to form a different view.
11.	Then after referring to the history of the litigation between the parties, the Full Court made the following concluding observations:
83.	The [mother] is entitled to prosecute her appeal with or without the transcript. The Court however, has discretion to consider whether the finite public purse should again be extended to these parties in the form of the cost of the transcript. Given the litigation to date and the similar results after two complete hearings we do not think that there are exceptional circumstances to justify further expenditure of transcript or that the interests of justice could be said to demand such expenditure by the Court. 
…
87.	Our decision in relation to the provision of transcript as we have indicated does not prevent the [mother] from prosecuting her appeal nor does it bind a differently constituted Full Court from coming to a different view during the course of the appeal if there were other matters properly brought to its attention.
12.	On 14 March 2011 the Appeal Registrar wrote to the mother noting that nothing further had been heard from her since the Full Court had refused her application to be provided with transcript and requesting her advice as to whether she intended to pursue her appeal. 
13.	On 21 March 2011 the mother advised the Appeal Registrar that she did intend to pursue her appeal, and on 4 April 2011 she wrote again to the Registrar saying that she had “briefed Counsel to draw amended grounds and should be in a position to file same within the next seven (7) days”. 
14.	On 21 April 2011 the Appeal Registrar wrote to the mother referring to the mother’s email of 4 April 2011 and noting that the Amended Notice of Appeal had not yet been received, and also saying that when it was received the appeal would be listed for a further procedural hearing. 
15.	On 8 July 2011 the father wrote to the Appeal Registrar advising that in “circumstances where the appeal has not been actively pursued … for almost two years”, he wished “to make an application that the appeal be listed for dismissal”. 
16.	On 3 August 2011 the Appeal Registrar wrote to both parties and to the Independent Children’s Lawyer noting that there had been no further contact from the mother since her communication of 4 April 2011, and referring to the provisions of r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”) (which provides that if an appellant has not shown reasonable diligence in prosecuting an appeal, the Court may list the appeal in order to consider its dismissal on 14 days’ notice to the parties). The Appeal Registrar further advised that in accordance with this rule the appeal had been listed before the Court on 23 August 2011 for the Court to consider whether to dismiss the appeal for want of prosecution.
8.	The mother’s present application came before the Federal Circuit Court on short notice on 8 February 2013. On that date the Court ordered that the parties and the children attend for the purposes of a child inclusive conference. 
9.	The child inclusive conference was conducted on 13 February 2013 and a short memorandum was prepared by the Family Consultant (Exh D). As a consequence of matters raised in the Child Inclusive Report the children have been attending the M program conducted by N Org since this time.
10.	Proceedings were again before the Court on 21 March 2013. On that date the Court ordered the appointment of an Independent Children’s Lawyer and made orders by consent that provided:
a)	For the children to remain enrolled and in attendance at G School;
b)	That orders made on 8 February 2013 requiring the parties to apply to have the children re-enrolled at F School, requiring the mother to notify the Court of the outcome of the application for re-enrolment and leave to relist on 24 hours’ notice be discharged;
c)	That the mother’s interim applications contained in her application filed on 5 February 2013 be dismissed;
d)	That the mother’s further interim application filed on 26 February 2013 be dismissed;
e)	That the mother’s contravention application filed on 5 February 2013 be dismissed.
11.	Proceedings were adjourned to 9 July 2013. On 9 July 2013 the mother was directed to file and serve any affidavit setting out the facts, matters and circumstances as to the Rice and Asplund threshold issue within four weeks and the father was directed to file and serve any affidavit in reply within four weeks thereafter. Proceedings were adjourned to 6 September 2013 for mention.
12.	On 6 September 2013 the Court heard argument in relation to objections to various subpoena and in relation to transfer of proceedings to this Court. Judgment was delivered on 24 January 2014 and proceedings were transferred to this Court.
13.	On 10 February 2014 proceedings were listed before a registrar of this Court. There being no appearance by or on behalf of the mother, proceedings were adjourned to 2:15pm on 5 May 2014 for the purposes of either dismissal of the mother’s application in default of appearance or further directions in the event that all parties appeared.
14.	On 10 June 2014 the mother filed an Application in a Case seeking orders that the father be restrained from removing the children from school for the week commencing 23 June 2014 and that the father not be permitted to take the children out of the jurisdiction during that week and until noon on Saturday, 28 June 2014. The father filed a response seeking orders that the mother’s Application in a Case be dismissed and that the children remain in his care from 27 June 2014 to noon 28 June 2014 “in lieu of makeup time for periods in the previous school holidays where the father forwent time with the children making them available to the Mother at her request”.
15.	On 18 June 2014 the interim applications were determined by Senior Registrar Campbell who in summary ordered:
a)	That the children’s time with the mother be suspended to allow the children to remain with the father during the last week of school term and thereafter until the end of the first week of the school holiday period;
b)	That the father be restrained from taking the children to any other place other than State H in the Country I during the forthcoming trip to the Country I;
c)	That the mother’s application filed on 10 June 2014 be dismissed.
16.	A further subpoena argument between the parties in relation to subpoenas issued by the mother was determined in chambers by Senior Registrar Campbell on 4 August 2014. The Registrar ordered that the subpoenas be struck out.
17.	The Rice and Asplund threshold issue was listed for determination as a one-day matter on 26 November 2014. On 25 November 2014 it became apparent that the mother sought to rely upon voluminous material and proposed cross examination of the father. The hearing date was vacated and proceedings were subsequently listed for determination for three days commencing on 4 February 2015. 
18.	The reasons for judgment of Jordan J delivered on 25 August 2009 were marked into evidence as Exhibit C. To say that in his judgment his Honour was less than complimentary as to the conduct and behaviour of the mother and father would be a gross understatement. Some of the comments in the judgment his Honour include:
1. …The parties have been embroiled in endless litigation since prior to the birth of their second child.  That process has taken a heavy toll upon the parties, both financially and emotionally.  Even more worryingly, that conflict and the arrangements put in place over that five year period have necessarily imposed a great deal of hardship upon their children.  Hopefully, the decision of the Court on this occasion may serve to at least reduce that level of hardship in the future…..
…
18.	It is appropriate to observe that, whilst clearly much of the hardship in this case has been inflicted upon the parties by themselves and they each acknowledge some past errors in that regard, the difficulties inherent in this matter have been compounded by the litigation process itself.  Again, whilst much of the complexity in that process has been caused by the inability of the parties to resolve matters and their propensity to have recourse to the Courts at the first sign of difficulty, the parties and their children have, themselves, been victims of delays within the system and have suffered because of the need to implement burdensome orders clearly intended only as short term measures which have, nonetheless, remained in place for many months at a time.  
19.	As a consequence of all of these matters, the children have endured a life of conflict, instability, insecurity and uncertainty….
…
23.	A compelling feature of this case relates to the dysfunctional nature of the relationship between the parties.  They operate under an environment of abject mistrust and an inability to communicate and co-operate effectively…
…
28.	The material evidence disclosed a vast degree of conflict in relation to almost all aspects of the history of the case.  Whilst each party made some faint concessions, in reality, they each sought to hold the other almost entirely responsible for all of the difficulties in the relationship and each of the multitude of problems encountered by each of them and by their children in the five years since separation.
19.	Yet, notwithstanding, his Honour said as follows:
48.	As the case was originally presented, and notwithstanding the vast array of complaints made by each of the parties in their extensive material, each party acknowledged the other was capable of providing a high standard of day to day care.  They each acknowledged that the children had a strong attachment to and love of and affection for, each of their parents.  They each asserted that they valued the importance of the relationship between the children and each of their parents.  On this latter point, however, there was clear reservation on both sides to varying degrees about the bone fides of the stated positions adopted by the parties…
…
137.	The wife has demonstrated the depth of her commitment to her children by her offer to immediately move to Sydney and put all of her entirely legitimate aspirations on hold for the benefit of her children.  The husband has demonstrated his exceptional commitment to his children by his willingness to endure the extraordinary hardships and challenges associated with sustaining his relationship with his children between States for the earlier years of their lives, which regime included weekly interstate journeys for years, often for only a few hours’ time with his children.
138.	Parents who are as committed as the parties before me, in the ways I have identified, are likely to be capable of bringing many positive aspects to their undertakings on behalf of their children.  That they have managed to do so appears amply demonstrated by the presentation of their children.
139.	What is as remarkable as the level of conflict in this case, is the fact that, at this stage, the children appear to be largely unaffected.  They each present as delightful, generally happy children, who are meeting milestones and functioning very well in social and school environments.  Given the difficulties and disruptions they have endured, whilst the parents must accept responsibility for much of that hardship, they are also entitled to considerable credit for the fact that they have each managed to successfully charter the children’s paths through such troubled waters so far without apparent harm.  It appears to be acknowledged by parents and experts alike that these children could not continue to survive unscathed…  
…	
153. …However, in assessing any risk of alienation, or in assessing the question of the capacity of the parents to facilitate and encourage good relations with the other parent, I must look at the totality of the evidence.  There have been numerous other incidents where there have been issues of interference with the other parent’s right to time or information, and I am satisfied that the parties must share responsibility for those difficulties.  As I perceive so many of those events, they were as a consequence of a lack of trust between the parties and/or their inability to communicate and co-operate.  At other times, they were as a consequence of a dogged refusal on both sides to concede any perceived advantage to the other.  I see the episodes surrounding the children’s school enrolment and the management of [C’s] broken leg as stark examples of this latter proposition.
154.	In adopting a less critical overview of this aspect of the case than was contended for by the husband, I have concluded that the most telling aspect of the history is, firstly, the fact that, in the main, the wife has complied with all orders for contact.  That is noteworthy in itself, because the prescribed Court regimes have been extremely onerous and required a great deal of effort on both sides, and the wife has consistently met her side of the bargain, albeit that there have been continual squabbles about aspects of implementation.
155.	Secondly, and even more importantly, as I have observed in earlier contexts, despite the wife’s issues with the husband personally, the children enjoy entirely positive and close relationships with their father and with [J].  Of course, no doubt, that is, in part, as a consequence of the inherent quality of the husband’s relationship with his own children but, in my view, the wife is also necessarily entitled to some credit in that regard.  The husband’s case would suggest that the wife is a person who has incessantly sought to undermine him.  She has had five years and two young, impressionable children to work with, if that was, indeed, her endeavour.  The total absence of any flaws in the children’s relationship with the husband and their secure attachment to him is entirely inconsistent with that proposition.
156.	In all the circumstances, I have proceeded on the basis that each of the parties retains the capacity to fulfil this very important role, however, I acknowledge that, as between the parties, the only uncertainty about appropriate commitment in this area demonstrated on the evidence is in relation to the wife.  There have been a number of decisions made by the wife which are capable of providing some support for his concerns.
20.	As to parental responsibility his Honour said:
184.	I have concluded that, despite all of the difficulties in this case, I am dealing with two basically decent people, who have struggled with the challenges of co-parenting whilst locked into litigation.  That litigation is, hopefully, coming to an end.  I am hopeful that that new environment will eliminate scope for strategising and that the parties will have no alternative but to move forward.  I have determined that they are each very committed, very capable parents.  I was impressed by each of their opening statements, where they each acknowledged the damage ongoing conflict was causing to their children, and I believe they were genuine in their statements at that time, that they would desperately like it to end.  Unfortunately, they were unable to eliminate that conflict during the unfortunately long duration of this trial.  However, I am hoping that, given the conclusion of the litigation and for the sake of these children, the underlying decency and capabilities of these parents will enable them to positively embrace a joint parental responsibility order.  In that sense, I adopt the approach of the Independent Children’s Lawyer that, in reality, there may be little to lose by such an order and, potentially, so much to gain if these parents can gain a level of respect and co-operation and manage a co-parenting regime.
The Rice and Asplund issue
21.	In Morton and Berry [2014] FamCAFC 208 (18 September 2014) the Full Court succinctly reiterated the development of the “rule” as follows:
18.	The “rule” in Rice & Asplund refers to remarks made by Evatt CJ in that case at [78,905-06]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. …
19.	Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
20.	The “rule” is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31).  The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
21.	It is to be recalled however, as was said in Perrott & Perrot [2014] FamCAFC 128, referring to the decision of the High Court in Norbis v Norbis (1986) 161 CLR 513 where Brennan J said (at 537):
It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that principles may harden into legal rules which would confine the discretion more narrowly than the parliament intended.
22.	It is not relevant to the determination of this case to consider whether the cases concerned with Rice & Asplund have “hardened” into binding principles.  However, there is no doubt that the concepts to which Rice & Asplund and the cases which follow it refer are entrenched in the Family Law jurisprudence. 
23.	As to the application of the principles, the Full Court in Marsden v Winch (2009) 42 Fam LR 1 said:
50. 	Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at: 
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a 	significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate 	for the disruption caused by significant re-litigation.
24.	Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which govern determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.
22.	At the commencement of the hearing the parties were informed that the application would proceed on the basis of submissions arising from the material filed by each of the parties or otherwise in evidence. There was no objection to such a course.
The mother’s evidence
23.	The mother relied on her affidavits filed on the 15 August 2013, 23 May 2014 and with leave, her affidavit filed at the commencement of the hearing on 4 February 2015.
24.	It is to be noted at this point that the mother seeks a substantial and significant alteration to what has been long term parenting arrangements for these children. She seeks orders that would place the children substantially in her primary care with the father to spend time with the children during school terms on alternate weekends and also midweek time, and also a sharing of the school holidays.
25.	The children have been, notwithstanding the ongoing sniping between the parties, in a settled arrangement now since before the final orders were made by Jordan J on 25 August 2009.
26.	Accordingly as foreshadowed in Marsden v Winch (2009) 42 Fam LR 1 in that circumstance the Court would be looking for significant changes in relation to the children, the likelihood of orders being varied and the potential detriment and disruption to the children caused by further litigation. These considerations must be balanced against the past circumstances as considered by Jordan J and the reasons for decision behind the final orders of 2009.
27.	The mother’s affidavits reveal over the more than four years since final orders some discrete issues relied upon by her. Some of these include the circumstance where her youngest child, Ms K, is now older and the subject children are expressing some views as to wishing to spend more time with her. However the three children are at present at the same school and it is to be inferred probably see each other on a daily basis. In 2016 the eldest child B will commence high school but the two younger children will continue to remain at the same school for several years.
28.	Otherwise the mother refers to an incident in early 2012 where the child B presented with a thinning patch of hair at the top of her head.  The mother obtained a referral from the child’s general practitioner to Ms L Psychologist at Prince of Wales Hospital. The child attended on three occasions, yet the mother adduces no evidence as to what arose as a consequence of those consultations. She made similar observations in relation to the child in early 2013. She offers no evidence that she took any further action in relation to the issue. 
29.	She asserts that the child C has shown signs and anxiety and distress since 2010 in respect of which she has sought advice from the child’s general practitioner from time to time. The mother offers no evidence as what may have arisen from those consultations nor any evidence that the child’s anxiety is continuing. It is to be noted that the children remain engaged in the M program as referred to above. 
30.	The mother makes ongoing complaint about difficulties with phone contact. In this regard her application for contravention had been previously dismissed.
31.	The mother raises an issue as to an injury sustained by the child B in April 2013 and the father’s behaviour consequent to that at the hospital. An isolated incident in respect of which the mother makes no subsequent complaint. 
32.	The mother further raises issues arising from the child B having been informed by the father of the mother’s reports that when the child was younger the child had been sexually abused by the father. This issue was the subject of some comment in the child inclusive conference conducted on 13 February 2013. The Family Consultant in that memorandum reports as follows:
([B]) also said that her father had told her that her mother has alleged that she was sexually abused by him when she was little and was not sure if the mother had also said this to her. [B] is clearly struggling with this information. She said that it is confusing because she does not believe that it happened and appears to find it very difficult to talk about. [B] indicated that she tries not to think about it and does not want to talk about it either. At some stage in the future [B] may need to have therapeutic assistance in dealing with this.
33.	It is common ground that subsequent to the matters raised in the child inclusive memorandum both children have been engaged in the M program run by N Org to assist children following separation.  
34.	The mother otherwise expresses concern that the child B is going through puberty and the father’s ability to properly cope with the issue. This issue should be seen as a necessary incident of the subject children getting older and moving through various stages of maturity.
35.	The mother further asserted issues in relation to child support. It was conceded by her counsel that this issue is more properly dealt with by an administrative application under the relevant legislation.
36.	The father’s alleged behaviour when the children were enrolled at F School is the subject of complaint by the mother. That issue appears to have been resolved by the children changing schools and the mother’s evidence in her latest affidavit, that indeed the father’s attendances at the children’s school are now few and far between. Similarly the mother complains of the father’s behaviour at one netball game and his failure to bring the child B to training after school on Tuesday when the children are with him.
37.	On 22 June 2012 following an incident between the parties the father filed an application for an apprehended violence order. Ultimately that application was dismissed in March 2013. 
38.	Indeed the mother comments in relation to her assertions about the father’s conduct that she has been receiving ongoing support over the years and that she feels stronger and can cope much better with the father’s behaviour with support from her family, friends and counselling
39.	The mother makes complaint as to other persons that may be at the father’s home from time to time including babysitters and live-in nannies. The mother makes no assertion that the children are at any risk in relation to the father’s domestic arrangements. She complains about the children travelling to school by public transport yet makes no suggestion that this has been the subject of any complaint by the children to her. 
40.	In the mother’s final affidavit, filed with leave on 4 February 2015, she comments again about the issues arising from the shared care arrangement as it impacts upon the older children and her younger child Ms K. As referred to above notwithstanding that the older children reside with the father in a shared care arrangement during school term, all three children are presently at school together. It is to be expected that this issue is not unusual in circumstances such as the mother’s household that represents a blended family.
41.	The mother complains as to the father’s behaviour in late November 2014 at a school choir occasion. This appears to be an isolated incident. 
42.	The mother confirms in this later affidavit that the father has ceased to attend many school events, not attending athletics carnival, swimming carnivals interschool netball, interschool soccer, school assemblies and other events and that he has not volunteered as he may have done in the past as a parent helper. 
43.	No doubt the father’s absences from the school and other events have assisted to limit the ongoing physical contact between the parties.  
44.	The mother otherwise makes comment in relation to an incident between the father and his son J now 17 years of age. The circumstances of the father’s relationship with his son are dealt with by Jordan J in his reasons for judgment. The children have informed the mother that they no longer see J and the father has no contact with the child.
45.	The mother in her recent affidavit complains about child support, conflict between herself and the father about B’s high school, minor issues in relation to holiday changeovers, difficulties with phone contact whilst the children were on holidays in City O with the father and other difficulties in relation to her telephone contact with the children. The mother makes assertions of the children being left unsupervised at the father’s home yet offers no evidence as to the source of knowledge.
46.	Probably one would venture to say not unusual issues and representing ongoing skirmishes that the mother and father have been engaged in their parental warfare now for many years. 
47.	In a somewhat adventurous submission it was contended by counsel for the mother that overall the father’s conduct should be regarded as coercive and controlling such that it was appropriate that the Court revisit the children’s settled parenting arrangements. Such a contention on the evidence is not supported and quickly dismissed.
The father’s evidence
48.	The father’s response to the mother’s application for further parenting orders in relation to the children is that her application be dismissed. 
49.	He proffers little evidence in support of the dismissal sought by him save to provide to the Court in his affidavit filed on 30 September 2014 an overview of the history of the litigation between himself and the mother and to provide some response to the mother’s allegations.
50.	The father puts in issue many of the matters complained of by the mother. 
51.	However in considering the mother’s evidence in the circumstances of this matter it is appropriate to consider her evidence at its highest having regard to the absence of cross examination.
The Independent Children’s Lawyer 
52.	The Independent Children’s Lawyer was succinct in her submissions. It was contended that the mother’s application should be dismissed in that there were no circumstances that would give rise to a likelihood of the present final orders being varied in a significant way, as a result of a new hearing. 
53.	The Independent Children’s Lawyer identified the issue of the relationship between the three siblings as referred to above but noted that the three children are presently at the same school, that the mother attends daily to deliver the youngest child to school and that when the eldest child goes to high school, the two youngest will remain at school together. In the context of this application the Court is of course concerned, contended the Independent Children’s Lawyer, with the best interests of the subject children only.
54.	Otherwise, the Independent Children’s Lawyer noted the ongoing issue between the parties to which the children have been subjected and that both children have, since about February 2014, been engaged in counselling through the M program conducted by N Org.
55.	The father for his part supported the submissions of the Independent Children’s Lawyer.
The disposition of the mother’s application
56.	In the context of the “rule” in Rice and Asplund the disposition of the mother’s application is determined by having regard to the best interests of the children (Poisat [2014] FamCAFC 128). 
57.	These are proceedings that fall to be determined pursuant to Part VII of the Family Law Act 1975 (“the Act”).
58.	The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode (2006) FLC 93-286. The Full Court in Goode & Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway. 
59.	Section 60B of the Act outlines the objects and principles underlying Part VII of the Act. 
60.	Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. 
61.	Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child. 
62.	Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility save for exceptions set out therein. 
63.	If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. 
64.	Whilst the discussion above sets out the legislative pathway in relation to most parenting matters, in this matter there are already in place existing final orders after a protracted final hearing.
65.	The Court is required to determine whether the issue as to appropriate parenting orders in relation to the subject children should be reopened and the parties be permitted as they have done in the past, to engage in what would most likely be protracted litigation.
66.	The Court is required to focus on the best interests of the children in considering whether the mother’s application should proceed or not.
67.	The primary considerations are: 
a)	The benefit to the children of having a meaningful relationship with both of the children's parents; and 
b)	The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 
Meaningful relationship
68.	In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant. 
69.	In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”. 
70.	The subject children have been exposed to ongoing parental conflict, carping criticism and point scoring by both parents for years. The utility of the shared parenting arrangement and equal shared parental responsibility ordered by Jordan J in 2009 has been demonstrated by the lack of any real substance in the complaints made by the mother as the basis of her assertions as to significant change that may justify reopening of parenting issues. 
71.	There is no evidence that in their present circumstances the children don’t enjoy sound relationships with each of their parents. The prospect of one of the parents having primary care of the children against the background of parental conflict that permeates this matter presents a real risk as to the present ongoing meaningful relationships that the children enjoy with both of their parents. 
72.	No doubt there will continue to be ongoing conflict between the parents but to all appearances the children have been well served by the substantial time they spend with each parent in the present shared arrangement. There are grave concerns as to the ramifications of the present long-standing arrangements being changed.
Section 60CC(2)(b) – need to protect 
73.	In the context of this matter it is appropriate to consider the need to protect the children from psychological abuse and long term consequences that may arise therefrom.  What goes on in the respective household of each of the parents is a matter for conjecture. However there is a strong inference that the attitude of each of the parents to the other permeates their day-to-day household. The children are to some extent it appears insulated from the parental conflict by reason of the substantial uninterrupted time they spend with each parent during school term and school holidays. 
74.	There would be serious reservations having regard to the background of parental behaviour as to either of these parents who might obtain primary residence of the children being able to promote the children’s relationship with the non-live with parent. These children have been dragged along the litigation pathway that has been perpetuated by the parents in this matter. A disruption in their current well-settled arrangement could well spell difficulties for them into the future. This is clearly indicative of the current arrangements remaining in place notwithstanding the nature of the relationship between the parents
75.	Regard has been had to each of the additional considerations set out in section 60CC(3) of the Act as they are relevant to the matters discussed above. 
76.	Particular emphasis is placed on the provisions of:
a)	Section 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; and 
b)	Section 60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
77.	The concerns that arise in relation to the subject children by reason of these two particular additional considerations are self-evident from the discussion referred to above.
78.	Significant regard must be had to the reasons for judgment of Jordan J and in particular the reasons that led him to craft orders as he did.
79.	The evidence of the mother does not support any contention that there is a likelihood of the present final orders being varied in a significant way as a result of the new hearing. Her complaints simply mirror the matters referred to in the judgment of his Honour.
80.	Even if there was a likelihood of orders being varied, the nature of any likely changes, small or otherwise, when weighed against the potential detriment to the children caused by further litigation is clearly indicative of the mother’s application being dismissed in the best interests of the children.
81.	An order will be made accordingly.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 February 2015.

Legal Associate:  

Date:  12 February 2015