IN ORDER TO HAVE SOLE RESPONSIBILITY OVER THE CHILDREN, MOTHER FILES AN APPLICATION TO VARY EXISTING PARENTING ORDER
Dwyer & Ireland (No 2) [2021] FCCA 86 (22 January 2021)
This is an application where the mother seeks for the variation of existing parenting orders so that she could have sole responsibility over the children.
Facts:
This is a parenting application in respect of five children: X (16 years old), Y, (5 years old), Z (14 years old), W (11 years old) and V (seven years old). Orders were made by consent by the Family Court of Australia on 11 April 2018 that provided, in summary, for shared parental responsibility, that the children live with the mother and that the children spend time with the father. On reaching the age of 14 the children were to live with the parent with whom they chose to live with.
The mother filed an initiating application seeking to reopen parenting orders. She sought, in summary, sole parental responsibility for the five children, that the children live with her, that the two younger children spend supervised time with the father and that a family report be prepared.
Issue: Should the parenting proceeding be reopen so that the parenting orders be varied?
Law:
- Family Law Act 1975 SS.11F, 60CC
Analysis:
Repeated or unnecessary litigation about children is likely to be psychologically harmful to those children and that factor should be given significant weight by a court. Consequently, a court will not usually consider reopening a parenting case unless there is some relevant or significant change in circumstances. Further, the court will ordinarily reopen parenting issues only if it is "on the cards" that some other orders will be made. Obviously, a change in circumstances, however significant, that is not likely to result in any variation of existing orders or only a small variation would not justify reopening parenting issues or every parenting issue. That is the case here.
The mother seeks orders that the older three children who currently live with the father should live with her and she should have sole parental responsibility for those children. The existing orders, made on 11 April 2018, provide that the children should determine with whom they wished to live once they reach 14 years of age. Three of the children are now 14 years or older. It is evident that X and Z are estranged from the mother to some degree. Y spends significant time in both households.
It is unlikely on the material before the court that it court would make an order that the older three children return to live with the mother if that were against their wishes. For similar reasons, the court sees no prospect of an order for sole parental responsibility for the children to repose in the mother.
Conclusion: The application of the mother is hereby dismissed.
