BELDEN & LAMKEY

[2020] FCCA 2499

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELDEN & LAMKEY [2020] FCCA 2499

Catchwords:
FAMILY LAW – Rice and Asplund argument – final consent orders made in November 2018 – final consent orders provide various conditions for the mother to satisfy with respect to her drug use – whether or not the father’s alcohol use constitutes a change of circumstance.

Cases cited:

In the Marriage of McEnearney (1980) FLC 90-866

Marsden & Winch [2008] FamCAFC 16

Rice & Asplund (1979) FLC 90-725

Shan & Prasad [2020] FamCAFC 189

SPS & PLS [2009] FamCAFC 152

Applicant: MR BELDEN

Respondent: MS LAMKEY

File Number: MLC 1037 of 2009

Judgment of: Judge Harland

Hearing date: 11 June 2020

Date of Last Submission: 11 June 2020

Delivered at: Melbourne

Delivered on: 9 September 2020

REPRESENTATION

Counsel for the Applicant: Ms Howe

Solicitors for the Applicant: Faram Ritchie Davies

Counsel for the Respondent: Mr Radich

Solicitors for the Respondent: Morrison and Sawers

ORDERS

1. The response to application for final orders filed 28 April 2020 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Belden & Lamkey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1037 of 2009

MR BELDEN

Applicant

And

MS LAMKEY

Respondent

REASONS FOR JUDGMENT

1. The respondent mother seeks to re-litigate the final parenting orders made on 15 November 2018 and 5 December 2018 on the basis that there has been a significant change of circumstances pursuant to the principles referred to in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”). The father argues there has been no change of circumstances and points to the orders themselves which specifically address the steps the mother must take before engaging in further parenting proceedings.   

2. There are two children of the relationship, X born in 2007 (“X”), aged 13 and Y born in 2010 (“Y”), aged 10.

3. The father initiated the current proceedings after the mother over held the children in April 2020. The mother argues that the father’s alcohol abuse and his inability to facilitate the children’s relationship with her gives rise to amend the final parenting orders.

Procedural history

1. The parties have been engaged in court proceedings on and off since 2009 when the mother filed an initiating application on 10 February 2009. The parties entered into final consent orders on 27 November 2012. Following an incident whereby the mother over held the children in 2017, the father filed an initiating application on 19 December 2017.

2. On 15 November 2018 Her Honour Judge Stewart made final parenting orders, by consent. The orders, among other things, provided for:

   a)the father to have sole parental responsibility for the children;

   b)for the children to live with the father;

   c)for the children to spend time with the mother for one overnight each alternate weekend;

   d)for the children to spend time with the mother in school holidays and other special occasions; and

   e)for the mother’s time with the children to occur at the home and in the presence of the maternal grandparents.

3. The orders further included a pathway for the mother’s time with the children to increase providing she completed:

   a)three consecutive hair follicle tests;

   b)completed accredited drug and alcohol counselling; and

   c)Attended upon and provided a report from a psychologist specialising in addiction and relapse.

4. The consent orders included mutual restraints. Order 13(a) restrains both parties from “consuming or being under the influence of alcohol or any illicit substance 24 hours prior to and during all times the children are in their respective care”. These types of restraints are common, particularly in consent orders but can be problematic in their breadth and practicability.

5. On 22 November 2018 the Independent Children’s Lawyer (“ICL”) wrote to the Chambers of Judge Stewart indicating that there was confusion between the parties with respect to whether the weekend time was to be every weekend or alternate weekends. The matter was listed for further directions on 5 December 2018 and further consent orders were made varying the 15 November 2018 orders with respect to the mother’s time being on alternate weekends. The two sets of orders make up the totality of the final orders currently in dispute.

6. The father filed an initiating application on 17 April 2020 seeking a recovery order for X and Y to be returned to his care and for the mother to spend supervised time with the children at a contact centre in Town B for two hours every fortnight.

7. The matter was listed before me on 1 May 2020 for interim defended hearing. On that occasion I made orders for the mother to return the children to the father by 5:00pm that day, for the final orders dated 15 November 2018 and 5 December 2018 to remain in full force and effect and for the parties to attend upon a family consultant for the purposes of a child inclusive conference.

8. The matter was further listed before me on 11 June 2020 to hear argument with respect to the orders sought in the mother’s response seeking that the final orders be amended. That is the subject of these current set of reasons.

The mother’s case

1. The mother submitted a proposed minute of orders sought before the hearing on 11 June 2020. In summary, the mother is seeking:

   a)that the mother and father have equal shared parental responsibility for the children;

   b)the children live with the father; and

   c)that the mother’s time with the children be increased to a 5/9 arrangement with half school holidays and that this time take place at the maternal grandparents home.

2. The mother’s Counsel submits that when the mother entered into consent orders in 2018 she was unrepresented, had mental health issues and was struggling with illicit drug use. The mother’s Counsel submits that she has addressed her drug use and continues to engage in various support services with respect to drug rehabilitation and mental health issues. He argues that the mother should be afforded the opportunity to be involved in major decisions in the children’s lives as she has addressed the issues that were of concern at the final hearing in 2018.

3. With respect to increasing her time with the children, the mother’s Counsel submits that the increase is largely in line with the recommendations of the family consultant from the child inclusive conference. He submits that the children have indicated to the mother and to the family consultant that they wish to spend more time with the mother and that due to their age and maturity these wishes should be given greater weight.

4. The mother’s Counsel further argues that the father is failing to facilitate the children’s relationship with the mother. In the mother’s affidavit filed on 29 May 2020 she deposes to an incident on 4 May 2020 where she attempted to telephone the father for the purposes of telephone time with the children and he told her to “fuck off”. The mother says that he told her the children were in bed, which she did not believe.

5. The mother’s minute of orders also sought further ancillary orders including:

   a)that where changeovers do not occur at school they occur at the Town B police station and that the father is to personally attend;

   b)that the father complete a Carbohydrate Deficient Transferrin (CDT) blood test and both parties complete a further hair follicle test;

   c)that both parties attend rehabilitation counselling;

   d)the father complete a men’s behavioural change program; and

   e)injunctions that restrain the parties from consuming alcohol or drugs whilst the children are in their respective care, leaving the children unattended without appropriate adult supervision and other standard non-denigration injunctions.

6. The mother’s Counsel submits that the orders she seeks are due to the father’s long history of alcohol abuse. He submits that the father has presented as alcohol affected at changeovers in the past and further downplays the severity of his alcohol abuse. The mother’s Counsel notes that the father’s recent psychologist assessed the father as having “alcohol use disorder, moderate” and that “[w]hilst Mr Belden is aware of the problematic nature of his drinking, he is unlikely to modify his behaviour at present.” The further ancillary orders sought by the mother are an attempt to ensure the father is not hiding his drinking and that the children are not at risk in the father’s care.

The father’s case

1. The father also submitted a proposed minute of orders sought before the hearing on 11 June 2020. He is seeking that the final orders dated 15 November 2018 and 5 December 2018 remain in full force and effect and that the mother’s response be dismissed.

2. The father’s Counsel notes in her written submissions that the children have now been the subject of litigation since 2009. She further says that since the recovery order made on 1 May 2020 the mother has caused the police to conduct seven welfare checks on the children at the father’s household, all of which have resulted in no concerns being raised by the police. Further, the father’s Counsel submits that the children’s school have not reported any concerns with respect to the father’s care of the children and that the Department of Health and Human Services, in their report dated 22 April 2020 have confirmed that as long as the father continues to receive assistance with respect to his alcohol consumption then they do not hold any concerns for the children in his care.

3. The father’s Counsel also noted that the mother has made another variation on the Interim Intervention Order (“IVO”) against the father and that she repeatedly returns to the Magistrates Court and that her use of the system is an abuse of power.

4. The father’s Counsel argued that the above interventions cause emotional damage to the children with respect to how many times they are being interviewed by different people.

5. In his affidavit filed 9 June 2020 the father deposes to Y filming him and the household. He is concerned that Y is doing this under the mother’s instruction and that the mother may be interrogating the children about his alcohol consumption. He holds fears that the children perceive all bottles to be alcohol and that this is a result of the mother’s behaviour and involving the children in discussions about his drinking. The father’s Counsel says that the father has been frank with respect to his drinking and that he does drink alcohol when the children are not in his care. The father contends that the mother lies about his level of drinking and blows it out of proportion.

6. The father’s Counsel acknowledged that the mother has attempted to engage services with respect to her illicit drug use, however, notes that the D Rehab Centre rehabilitation program is a six week program and the mother only attended for approximately four and a half weeks before she left. The mother’s affidavit filed on 6 May 2020 annexes an email from D Rehab Centre noting that she did not complete the program and that there was a bed for her there in January 2020 to complete the program. The father’s Counsel submits that she did not take up that opportunity and has used illicit drugs since that time. The father’s Counsel also notes that other support services have closed their file in relation to the mother, however says that the reports note that they were of the view that she had completed the D Rehab Centre program.  This is of some concern.

The child inclusive conference

1. Both parties and the children attended upon a family consultant for the purposes of a child inclusive conference on 7 May 2020. Due to the current COVID-19 pandemic, the parties and children were interviewed via telephone.

2. The family consultant identified the current concerns as the father’s alcohol use and the mother’s substance use and mental health issues. The report detailed the incident that caused the most recent set of proceedings to commence. The family consultant states that the parties both mistakenly believed that the children were to be returned to the father at different times and that when the mother went to return the children at 5:00pm on Sunday the father did not attend and she was informed that he had been in custody for “drunk and disorderly” conduct. The father says he mistakenly believed that the children were not due to be returned until the Tuesday of that week. Consequently, the children remained in the mother’s care.

3. The family consultant notes that the father says he got “locked up” because he was “out with a friend who got in trouble”. The father told the family consultant that he had enrolled for drug and alcohol counselling three weeks prior to the interviews.

4. The mother told the family consultant that she last used ICE in August 2019 after using it three times a day for seven years. The mother also said that she had last used cannabis in December 2019 after using that drug every day for fifteen years. The family consultant noted that the mother’s first hair follicle test that showed negative results for any illicit substances was produced on 20 March 2020. The family consultant further noted that the mother attended D Rehab Centre in October 2018 however experienced some interpersonal difficulties with staff and left the treatment prematurely. The mother was diagnosed with Borderline Personality Disorder (“BPD”) in 2016 and the family consultant noted that she was evasive with respect to details with respect to this diagnosis in 2016. The family consultant noted that the mother does not appear to have accessed treatment for BPD.

5. The family consultant interviewed X and noted that she presented as polite and friendly. She denied feeling worried or upset but did express that she would like to spend more time with her mother or equal time with each parent. X advised that she did not know the circumstances surrounding what led to her living with her dad and expressed that it was a “bit annoying” that she does not get to see her mother as often. She repeated that she often felt bored at both parent’s houses but that she does not currently have any worries and if she did she would tell the family friend Ms C about those worries.

6. The family consultant also interviewed Y who also presented as polite and friendly. The family consultant noted that Y appeared to be developing a slight alignment with her mother. Y reported that she had one worry which was her father’s drinking. The family consultant noted that Y did not appear to be aware of her mother’s substance use issues, however, has a heightened awareness of the father’s drinking. It is to the father’s credit that Y is not aware of her mother’s drug addiction. Her knowledge of the father’s drinking and this being problematic could be because of her direct exposure to it or the mother voicing her concerns and involving the children in policing it.  It may well be a combination of these.

7. Y also referred to the incident where the mother attempted to call the children and the father told the mother that they were in bed. She said “Mum is supposed to call to speak to us, but dad told mum we were in bed, but that wasn’t true and mum yelled at dad.” Y also stated that she wished to spend more time with her mother but that she would like to spend an equal amount of time with her parents.

8. The family consultant recommended that the previous consent orders remain in place, albeit with a slight increase in the mother’s time with the children. There is no suggestion from the family consultant that the children are at risk in the father’s care or should have their time with the mother increased significantly at this stage.

Legal principles

1. The rule in Rice & Asplund is well-known. In that case, the Full Court of the Family Court of Australia had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation… Change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.

2. The trial Judge has discretion as to whether to consider the Rice & Asplund principle as a preliminary issue or after a full contested hearing. This case was argued before me as a preliminary issue. This is appropriate in the circumstances of this case.

3. It is important to bear in mind that the rule in Rice & Asplund is merely a manifestation of the best interests’ principle.[1]

   [1] See SPS & PLS [2009] FamCAFC 152 (“SPS & PLS”); Marsden & Winch [2008] FamCAFC 16 (“Marsden & Winch”), [47].

4. In Marsden & Winch the Full Court stated at [50]:

   Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made.  Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case.  How is that decision to be made?  The court must look at:

   (1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   (2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3) If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

5. In the recent Full Court decision of Shan & Prasad [2020] FamCAFC 189 the Court observed that when determining whether or not a change of circumstances has been established as a threshold issue the Court must take the evidence at its highest.

The past circumstances, including the reasons for the decision and the evidence upon which it was based

1. The mother’s Counsel submits that the father’s alcohol abuse, his recent time spent in the police cells and the children’s disclosures amount to a sufficient change of circumstance to vary the final orders. The father’s drinking is not a new issue. Much of the evidence in the mother’s affidavit filed on 28 April 2020 in relation to the father’s drinking pre-dates the final orders and was also before the Court when the final orders were made.

2. The father’s drinking was a live issue when this matter was last before the Court and the mother has not demonstrated a material change in the circumstances of the children.

3. The father’s Counsel submits that a potential change in circumstance has already been considered in the final consent orders further negating the need to re-litigate the matter at this point in time. The father’s Counsel submits that the orders provide a clear pathway for the mother to increase her time with the children. The orders dated 15 November 2018 require the mother to comply with the following:

   7. Upon the Mother:-

   (a) providing 3 consecutive hair follicle tests (“Annexure A”) confirming abstinence from all illicit substances for a period of 9 months;

   (b) attending drug and alcohol relapse prevention counselling through either:-

   (i) an accredited drug and alcohol counselling service, or if such service is unavailable;

   (ii) a psychologist specialising in addiction and relapse prevention;

   (c) providing a report to the Father from the counsellor / psychologist confirming that:-

   (i) the Mother has complied with all recommendations made by the counsellor / psychologist with respect to the treatment; and

   (ii) she has met the goals of the therapeutic intervention with respect to drug and alcohol relapse prevention counselling as set and determined by the psychologist / counsellor; then

   (d) the Mother spend time with the children be extended as follows:-

   (i) from 5:30pm Friday to 5:00pm Sunday;

   (ii) on Mother’s Day weekend from 5:00pm Friday to 5:00pm Sunday;

   (iii) at any other time agreed between the parties in writing; and

   (iv) all such times without the necessity of occurring at the home and in the presence of the Maternal Grandparents.

1. The following notation is also made on the orders dated 15 November 2018:

   A. In the event the Mother successfully completes the requirements as set out in order 7 above and mediation between the parties at a professional organisation (such as Relationships Australia or similar organisation) does not result in a further agreement between the parties, the Father shall not raise RICE V ASPLUND as a bar to the Mother seeking variation to these orders.

2. The father’s Counsel argues that the mother is seeking to re-litigate the matter without first complying with the requirements set out in the final orders. This submission carries great weight considering there is a clear pathway in the orders for the mother to obtain what she is seeking in her current response. Re-litigating the matter early not only renders the above consent orders nugatory, but also affords the mother an opportunity to circumvent the specific requirements she is required to satisfy before a further application can be brought.

3. The mother has produced one clean hair follicle test which does not amount to the three clean tests required over a nine month period. The mother has also not fully completed the drug rehabilitation program at D Rehab Centre. The orders are clear that she must satisfy all requirements before bringing an application to the court to vary the orders.

4. In April 2019 the parties signed a parenting agreement where the mother’s time with the children was to revert to being supervised at E contact centre. The father says in his written submissions that this arrangement was necessary as the maternal grandparents were not agreeable to supervising the mother’s time and she was using methamphetamines and marijuana up until late 2019.

5. Whilst the mother has made progress in dealing with her addiction, which is to her credit, she has more work to do.

Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing

1. The mother’s proposed minute of orders provides for a 5/9 arrangement between the parties and for the parties to have equal shared parental responsibility. In the event the mother were to be successful this would be a significant variation to the current orders.

2. What is less certain is the prospect of the orders changing after further litigation. One issue with the mother only having completed one clean drug screen is the unknown factor of whether or not the mother will continue to abstain from illicit drugs. On her own evidence the mother used illicit drugs as recently as December 2019.

3. It is evident that the mother is attempting to rehabilitate and is having some success, shown through her clean hair follicle test. However, she must continue on this trajectory before the matter is to be re-litigated. If she completes the requirements set out in the consent orders and the parties are unable to reach agreement she will be able to bring further proceedings.

If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.

1. The father’s Counsel argues that the children have been the subject of litigation since 2009. It is evident that the parties’ relationship has been fraught with issues and the children have gone back and forth between the mother and the father. It is not in the children’s best interests to continue to litigate this matter after such a short period of time since the most recent final orders were made. It is not in the children’s best interests to be subjected to interview processes and the stress of proceedings.

2. The effect of constant litigation on children was discussed in In the Marriage of McEnearney (1980) FLC 90-866. I note in particular that at paragraph 2 Nygh J states the following:

   …the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.

   The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.

Conclusion

1. Taking the evidence at its highest, I am not satisfied that the mother has established a change of circumstances. Once she has completed the requirements set out in the consent orders, if the parties cannot agree on a variation of the parenting orders she can make an application. For these reasons I will dismiss her application.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 9 September 2020