Father seeks change in final orders due to continual breaches and alienation.
Blass & Blass (No 2)  FCCA 1588 (16 July 2021)
The parties have two children, aged 11 and almost 8. The mother and father are in dispute over previous parenting orders over their children X and Y. The mother asserts that the father exposes the children to hostility. The father asserts that the mother alienates the children from him. The father has reached the point of applying for a change of residence. The mother sought for the Court to not change their residence in promise of complying with future orders about the children spending time with the father. The Court, in making its orders, relied on the best interests of the children which is to not lose their relationship with their father.
The mother and father were in a relationship from 2007 to June 2015. They have two children, X, and Y. The father filed an application for parenting and property orders in late 2015, not that long after the parties separated. Final orders regarding the parties' children, X and Y, were made on 12 October 2018. These orders provided for the parties to have equal shared parental responsibility and for the children to live with the mother and spend time with the father on alternate weekends from Friday to Sunday and for blocks of time in the school holidays.
On numerous occasions after the orders were made time did not happen. The father then filed two contravention applications seeking sole parental responsibility and that the children live with him. Otherwise, the father asserts that no matter what the mother now says about intending to comply with orders in the future, the conflict and difficulty around compliance would continue.
The Independent Children’s Lawyer proposed that the father have sole parental responsibility for the children and that they live with him. It was proposed that provided that the mother engaged in specialist counselling which focused on the benefit to the children of having a relationship with both of their parents and attended for two months then the children commence spending time with her, initially supervised, but in due course each alternate weekend and for half of the school holidays.
Whether or not it is in the best interests of the children for the father to have the sole parental responsibility.
Family Law Act 1975 (Cth) ss 60CC - provides that the Court, in making parenting orders, should treat the child's best interest is the paramount consideration.
There are existing orders in place, and pursuant to the Rule in Rice & Asplund, the judge must be satisfied that there has been a sufficient change of circumstances to justify reconsidering the earlier orders.
Blass & Blass  FCCA 2474 at  – , , ,  – ,  to  - Where there are allegations of family violence, but the father has a good relationship with the children and otherwise is of good character and there are mitigating and aggravating circumstances which contributed to the family violence.
Radley & Holder (2017) FCCA 2799 There are cases where people cannot get over what has happened to them and after the Court makes orders they find it impossible to comply with them and facilitate any time at all with the perpetrator of family violence...The court made orders for the children to spend more extensive time with the father... and there is objective evidence that since those orders were made the children have enjoyed that time.
It was submitted by the father that the mother engaged the children in counselling without the father’s consent and that the counselling has been harmful. The counsellors went to considerable lengths to try and get disclosures from the children which never came, they ignored all indications that the children were not in fact at any risk of harm from spending time with the father. The mother's evidence regarding the harmful sexual behaviour of the father was not corroborated by witnesses and neither child has validated it. The father has a very good attitude to the mother and to the idea of the girls spending time with her and that if they live with him they will not be at risk of losing a relationship with one of their parents.
The Court held that all previous parenting orders concerning X born in 2010 and Y born in 2013 (“the children”) are discharged. The father shall have sole parental responsibility for the children, provided that he notifies the mother of any proposed decisions relating to the long-term care welfare and development of the children. The children shall live with the father. The children shall spend supervised time with the mother.