FATHER SEEKS TO CHANGE CURRENT PARENTING ARRANGEMENTS OF HIS CHILDREN
Lepak & Tilly [2020] FCCA 2779 (7 August 2020)
This case involves an application to change the current parenting arrangements of the parties’ children, filed by the father, alleging that children were being exposed to the mother’s excessive alcohol use and that there was an acceleration of mistrust and conflict between the parties which, ostensibly at least, had been absent from the earlier proceedings.
Facts:
The parties to the proceedings are Mr Lepak and Ms Tilly. They are the parents of two children, X who was born 2010, and Y who was born 2012. Consent orders were made by the Family Court on 4 July 2016.
The father commenced the current round of proceedings on 5 November 2019. He proposed that the parties move to a regime whereby the children are in his care for six nights per fortnight and with their mother for eight. He asserted that even though orders had been made, the parties did not in fact follow them and, in fact, agreed that there would be an arrangement whereby he would have the care of the children for four nights a fortnight, and he says this continued until shortly prior to these proceedings being commenced.
Ms Tilly responded to the application on 23 January 2020. Her position is quite simple. She just asserts that the proceedings should be dismissed. In support of that position she asserts as follows: “There is a significant risk of harm to the children if they are exposed to protracted litigation.”
Both parties raised issues with the family consultant about alcohol and substance abuse, and issues were also raised in respect of mental health issues.
Issue: Should the court order the parenting arrangements sought by the father?
Law:
- Family Law Act 1975 60CA, 60CC
- Rice & Asplund [1978] [1978] FamCAFC 128
Analysis:
Although the court agrees with Mr Lipari’s submission that the children are not significantly older – they are not teenagers who are expressing a mature view about what they want or do not want – there still has been, through the effluxion of time, a change of circumstances, the most significant of which, in my view, is the evaporation of any goodwill between the parties and the mutual exchange of serious abuse allegations.
Clearly, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. In this case, there have not been repeated applications. There was a consent order and now this litigation.
This is not the sort of case where, at its highest, the evidence is unequivocal that not to allow the litigation will be in the better interests of X and Y than to allow it to proceed, given the mutual allegations of family violence, neglect and abuse, which have been raised.
Conclusion: Court orders that the interim application be dismissed.