Father's Application for Fresh Parenting Order Dismissed

Trewitt & Brock [2021] FCCA 1255 (5 May 2021)

Mother and father of X dispute parenting arrangements of the latter who is now aged 12.  The father applied for fresh parenting orders. 

Facts:

The father sought an order seeking shared parental responsibility over X as well as spend time orders.  The mother sought the dismissal of his application.  X was able to spend time with her father pursuant to previous orders until when her mother came to fetch her from her father but the latter did not allow her to go.  The mother was then assisted by the police and the former filed an application for a recovery order.  An order was made for the child to be returned to the mother and for the mother to spend supervised time with the child.  During this period, X had been diagnosed with autism spectrum disorder.  Both parents allege that the other had been physically disciplining the child. The father amended his application stating that the mother shall have sole parental responsibility for X and the latter shall live with the mother.  The child may spend time with him as agreed in writing between the mother and him.

Issue:

Whether or not the father's application should be permitted to proceed, potentially to a full hearing.

Applicable law:

Family Law Act 1975 (Cth) s 60CC - the best interests of the child should still be the paramount consideration is deciding the continuance of litigation. 

Rice & Asplund [1978] FamCAFC 128; (1979) FLC 90-725 - sufficient change of circumstance has to be shown for the court to consider embarking on another round of litigation.  Otherwise, applications shall warrant a dismissal.

Analysis:

While the father's ongoing mental health treatments aid him in handling litigation, continuation of litigation may still be not be in the best interests of X.  The latter had been diagnosed with ASD during the period of great distress brought by the previous dispute between the father and mother. Continuance of the litigation has the impact of placing X and the mother under extreme stress. 

Conclusion:

The court ordered the father's application dismissed as it is not in the best interests of X to have the case continue in consideration of her ASD and the father deliberately stepping out of X's life for a period of time.