Introduction
An application to re-open parenting proceedings where orders have previously been issued must be carefully considered before it is filed. There must be circumstances which will warrant the Court in re-opening a case. Dependent upon the circumstances, there may even be a case for an order for costs against an applicant who brings such an application without foundation.
Background
The Federal Circuit Court of Australia in Daubney & Janzen (No. 2) [2018] FCCA 3335 considered a situation where the Mother, in breach of Consent Orders, had relocated a child (“X”) from Town A where the child had spent equal time with each parent to live with the Mother in Canberra. The mother brought an application to re-open parenting proceedings.
Those Consent Orders provided that the children (both X and his half sibling) live with their Father and that there would be an equal time arrangement once and if the mother relocated to Town A.
The father had filed two recovery order applications prior to the third recovery application which was heard in this case.
That third recovery application was filed by the father in response to the mother’s application that the children live with her in Canberra.
The basis of the mother’s application to re-open parenting proceedings was allegations made by [X] of the father having given him harsh physical punishment. The father admitted in his affidavit having hit the child with a belt.
Court Analysis
The Court found that the father had acted out of frustration and that his treatment of the child was unacceptable.
The Court noted that the mother had relocated the children in breach of the Consent Orders which she had previously agreed and that it appeared that she regretted having agreed that the children live with the father and that equal shared care only apply if she was to live in town A where the father resided.
The mother submitted that the father’s actions justified the court to re-open parenting proceedings and to make a further determination of the living arrangements for the children due to the violence perpetrated on [X]. Whilst the Court could not then assess the level of this violence, it was noted that the father had admitted that it occurred, that it was unacceptable and that the father had said that he regretted it.
The Court said that if it was the case that the incident when the father had hit the child with a belt formed a pattern of behaviour and if it was the usual way that the father treated the children, particularly [X], then it would be appropriate to re-open parenting proceedings. If those things were true, then the Court said that the child would clearly be at risk and that that would be unacceptable and would be a change in circumstances justifying a reconsideration of what should be the children’s living arrangements.
However, the Court found that this was not the situation and that it was not here appropriate to re-open parenting proceedings or for thereto be a parenting case re-hearing. The Court considered that the incident had been a one-off isolated incident which the father regretted and for which he was contrite, having shown some insight after the event regards what had occurred. On the other hand, the Court found that the mother had shown no responsibility or acceptance that she had contributed to the incident by not accepting the agreement that she had made by way of the Consent Orders.
Orders
The Court confirmed that before a parenting matter is reopened, there must be cogent evidence that satisfies the Court of a change in a child’s circumstances or a parent’s circumstances. That test would be fulfilled if there was found to be a risk of physical harm to a child occurring on an ongoing basis. However, the Court did not consider that such a risk existed in this case so that mother’s application to reopen the parenting matter was dismissed with costs being ordered against the mother.