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MOTHER SEEKS TO COMMENCE A FRESH PARENTING PROCEEDING AFTER NOT PARTICIPATING IN THE LAST ONE

Bashir & Ghani (No 2) [2021] FCCA 253 (17 February 2021) 

This is a parenting proceeding where final orders were made last 2017 on an undefended basis against the mother. The mother now seeks to commence fresh parenting proceedings alleging that there was a change in circumstance to justify a new hearing.

Facts:

On 22 November 2017, the Court made final parenting orders concerning the two children of the parties, X born in 2012, and Y born in 2015. The court ordered that the children live with the father. The final orders were made on an undefended basis as the children’s mother disengaged from the proceedings.

On 25 June 2020, the mother commenced parenting proceedings. She moves the Court for orders that the children live with the father but spend time with her, initially on a supervised basis and then 4 nights per fortnight, during school holidays and on special occasions.

Discussion was had between the mother’s representative and the Court as to any other changed circumstance, when it was initially suggested that the mother is no longer using any illicit substance and that this was a changed circumstance.

Issue: Should the court grant the application of the mother to commence a fresh parenting proceeding?

Held:

The last time that the children spent time with the mother was in or around mid-2017. It is highly unlikely that Y would have any memories of his mother, and it appears from the father’s evidence that X’s memories of the mother are not positive.

At the time of the November 2017 orders, the mother had totally disengaged from the parenting proceedings and from the children. She had in November 2016 consented to orders for the children to live with the father and for them to spend supervised time with the mother. That time did not go ahead as the mother was not deemed suitable by the contact centre. The mother had been observed by members of her extended family to be using illicit substances. Her volatile behaviour and lifestyle had placed the children at risk.

The mother has not explained in the evidence presently before the Court, with any depth or insight, what the reasons were for her actions in respect of the children in 2017 and how her situation is now different, if not improved.

Given the length of time which has passed since the children last spent any time with the mother, their current circumstances, the difficulties the father has faced as a result of the proceedings and the likely impact on him as the children’s primary care giver (indeed sole caregiver as far as the parents are concerned), the practical difficulties in respect of any time occurring, and at its highest the need for significant supervised time if any time was ultimately ordered (and how this might be catered  given that the parents live some 5000km apart), there is not a real likelihood of the orders being varied in a significant way as a result of any new hearing.

There is a significant potential detriment to the children which fresh litigation would cause.

Conclusion: The mother’s application should be dismissed.

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