COURT DISMISSES THE MOTHER’S APPLICATION FOR HER FAILURE TO PROVE A CHANGE IN CIRCUMSTANCES THAT WOULD WARRANT A RE-OPENING OF PARENTING PROCEEDINGS

CHAMBERLIN & FALLOW

FAMILY COURT OF AUSTRALIA

[2020] FamCA 555

This case is an application for the reopening of parenting proceedings.

FACTS:

Ms Chamberlin (the mother) and Mr Fallow (the father) are the parents of X, who was born in 2013 and is presently seven years of age. On 11 May 2015 the parties consented to final parenting orders which provided for a gradual increase in time with the father such that the child commenced to live with each parent in a week-about arrangement in January 2019.

On 18 October 2019, the mother filed an Initiating Application seeking to discharge certain orders made by consent on 11 May 2015 and to reduce the child's time with the father to five nights per fortnight. She also sought orders to the effect that each party has the first option to care for the child, in the event that the other is unable to do so personally for twelve or more hours.

The mother deposed that the child's behavior has "changed" for the worse, such that his best interests require a reduction to five nights per fortnight with the father.  The mother contends also that a poor co-parenting relationship and problematic communication between the parties necessitates a reduction in the child's time with the father. She now complains that the father will not allow her unlimited contact with the child, while in her care, and that he has blocked all but limited email communication between the parties.

The father contended, in essence, that he observes none of the behavioral difficulties which the mother alleges that the child displays while in his care. The father maintained that the notes of the mother's psychologist demonstrate that she has a lengthy history of mental health symptoms and that there may be problems in her current relationship. The father maintained that difficulties within the mother's household provide no valid basis for depriving the child of the benefit of alternate weeks in his care. The father sought a dismissal of the mother's application, on the basis of the principles enunciated in Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 (“Rice & Asplund”). The father contended that there has been no change in circumstances sufficient to warrant a reopening of the parenting proceedings.

ISSUE:

Whether or not a reopening of the parenting proceedings as sought by the mother is warranted.

HELD:

The mother submits as basis of the application that the communication between the parties has deteriorated since the orders of 11 May 2015, that the child does not cope with the current arrangements, and that the father has a ‘poor attitude’ to the mother.

Communication between the parties is problematic.  The father’s evidence showed that the parties had a volatile relationship.  The Court is in view that the father took reasonable steps to limit the mother's excessive communications with him and she must accept most of the blame for the current situation.  Further, the mother adduced no independent evidence of the alleged behavioral difficulties of the child while he is in her care. It might reasonably be expected that her live-in partner has witnessed some of these behaviors but he gave no evidence in support of her case.

The mental health problems of the mother were known to both parties at the time of the consent orders.   The notes of the mother's psychologist provide a strong indication that a psychological difficulty inhibits her capacity to allow the child to share his time between his parents. The father's evidence as to the mother's behavior, which has at times disrupted the child's enjoyment of time with him, provides a similar indication.  Accordingly, the mental health issues of the mother do not constitute a change of circumstances since May 2015.

The Court dismissed the Initiating Application filed by the mother.  The mother bears the onus of establishing a change in circumstances sufficient to warrant a re-litigation of the parenting issue and the Court is satisfied that the mother failed to discharge her onus to establish a change in circumstances sufficient to warrant a re-litigation of parenting issues. Also, a re-litigation of parenting issues would be likely to cause stress to the child. He would be interviewed by a Family Consultant and would almost certainly become aware that there is a prospect of a change in his living arrangements.