V.D.S v W.M

The parties divorced in 2018, with a Consent Paper and Parental Responsibilities and Rights Agreement (Parenting Plan) incorporated into the Decree of Divorce. The Parenting Plan governed care and contact arrangements for their two minor daughters, aged 15 and 12. The Applicant (father) alleged difficulties in implementing existing contact provisions, claiming a pattern of frustration engineered by the Respondent (mother) to hinder his contact. He sought to vary the Parenting Plan to provide structured contact (alternate weekends, Wednesday nights) and to amend his liability for the children's medical expenses. The Respondent opposed, citing disputes of fact, prematurity, failure to exhaust internal dispute resolution, and the absence of the children's voices. At the commencement of proceedings, the parties agreed to appoint Craig Schneider as a Parenting Coordinator to investigate contact arrangements in the children's best interests.

• Whether the Applicant was entitled to approach the court to vary the Parenting Plan without exhausting internal dispute resolution remedies
• Whether the Applicant discharged the onus of proving the proposed variation was in the children's best interests
• Whether the application was premature
• Whether the children's views were adequately considered
• Whether the Applicant was entitled to relief regarding medical expenses

1. An Independent Clinical Psychologist, agreed between the parties with the assistance of the jointly appointed Parenting Coordinator, Mr Craig Schneider, shall be appointed to investigate contact arrangements in the children's best interests. 2. The costs of the Psychologist's investigation and report shall be paid by the Applicant. 3. Save for the above, the application is dismissed with costs on Scale C.

Before approaching a court to vary a Parenting Plan, parties must first exhaust the internal dispute resolution mechanisms provided for in the Parenting Plan. Where a Parenting Plan makes dispute resolution through a Parent Plan Collaborator and facilitator peremptory and envisages litigation as a last resort, a court application is premature if these internal remedies have not been exhausted. This aligns with s 6(4)(b) of the Children's Act, which requires an approach conducive to conciliation and problem-solving, avoiding a confrontational approach. Additionally, the onus rests on the applicant seeking variation to prove the variation is in the children's best interests, and the children's participation is crucial where they are of an age to articulate their views.

The court expressed understanding for the Applicant's desire for certainty and structured planning but noted the existing Parenting Plan already provided a mechanism for resolving holiday disputes through the facilitator. The court observed that both children were of an age where they could articulate their views and that imposing arrangements without their 'proverbial buy-in' may not yield the results envisaged by the Applicant. The court noted that the parties' agreement to appoint a Parenting Coordinator did not amount to the Applicant achieving success, given the Respondent's numerous previous attempts to persuade the Applicant to appoint an expert.

This judgment reinforces that Parenting Plans containing peremptory internal dispute resolution mechanisms must be respected and exhausted before litigating. It underscores that litigation in children's matters is a last resort under the Children's Act. The case confirms the principles in McCall v McCall regarding the onus in variation applications, and in VN v MD regarding the requirement to engage experts before seeking court intervention to vary a Parenting Plan. It also highlights the constitutional imperative under s 28 of the Constitution and s 10 and s 31 of the Children's Act that children's voices must be heard in matters affecting them.