Caceres & Barrett (No 2)
[2025] FedCFamC2F 130
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Caceres & Barrett (No 2) [2025] FedCFamC2F 130
File number(s): CSC 1004 of 2022 Judgment of: JUDGE COPE Date of judgment: 6 February 2025 Catchwords: FAMILY LAW – Parenting – Final Order made on 31 May 2021 – father’s application pursuant to s 65DAAA to re-open parenting matters – decision made under the rule Rice v Asplund in 2023 on same evidence – opposed by the mother – father required to undertake hair follicle drug testing - no evidence that the medicinal cannabis does or does not impact his capacity to parent – no independent expert evidence to differentiate between prescribed cannabis and illicit drug use – father’s Application dismissed
FAMILY LAW – Harmful Proceedings Order – the mother seeks that father be restrained from filing further proceedings without the leave of the court – second attempt to re-open child matters - the father has also filed Contravention proceedings and multiple Applications in a proceedings since the final order was made, the father has also filed proceedings in the State jurisdiction and a Human Rights claim alleging discrimination by the mother and the court –mother gives evidence of mental distress and financial harm - application granted
Legislation: Commonwealth of Australia Constitution Act (The Constitution) 1977 (Cth)
Disability Discrimination Act 1992 (Cth) ss 3, 47
Fair Work Act 2009 (Cth)
Family Law Act 1975 (Cth) ss 60CC, 65DAAA, 102QAC
Narcotic Drugs Amendment Act 2016 (Cth) s 2A
Cases cited: Carlyon & Graham [2024] FedCFamC1F 443
Caston & Caston [2020] FCCA 2162
In the Marriage of McEnearney [1980] FamCA 43
In the Marriage of Rice v Asplund (1979) FLC 90-725
Searson & Searson [2017] FamCAFC 119
Whitehill v Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 117 Date of last submission/s: 31 January 2025 Date of hearing: 31 January 2025 Place: Cairns Solicitor for the Applicant: Self-Represented Counsel for the Respondent: Mrs R Bassano Solicitor for the Respondent: MK Family Law ORDERS
CSC 1004 of 2002 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CACERES
Applicant
AND: MS BARRETT
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Initiating Application filed on 26 August 2024 be dismissed.
2.Pursuant to s 102QAC, the Applicant father is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against the Respondent mother without the leave of the Court.
3.That all outstanding applications be dismissed and removed from the pending cases list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
INTRODUCTION
The application before the court is a s 65DAAA application to reopen parenting proceedings. It is the second time that the applicant has brought such an application, with this court declining the previous such application on 15 June 2023. The court does not lightly make orders allowing child proceedings to be relitigated. Children deserve finality and certainty in their living arrangements and to be protected from eternal litigation.
The respondent opposes the application and seeks in addition that a harmful proceedings order be made requiring the applicant to obtain the leave of the court prior to instituting further proceedings.
The subject child of the proceedings is X born in 2017. She is now aged 7 years. The applicant is the father and the respondent is the mother.
By way of background the Final Parenting Order was made by His Honour Judge Riethmuller (as he then was) on 31 May 2021 after a four day Defended Hearing. That Order provides for the father to spend increasing time with the child. Those increases in time are conditional on the father providing hair follicle tests that are free of any illicit drugs. Ultimately the Final Parenting Order provides for X to spend time with her father on alternate weekends, half school holidays as well as on special occasions, provided that he is drug free. Until the father provides the hair follicle test the child spends time with him from 10:00am to 3:00pm on Saturday and Sunday each alternate weekend.
The father’s time has not progressed past the initial stage. The father has either failed to provide hair follicle tests when requested or he has provided tests which reflect the presence of THC.
On 29 November 2022 the father filed an application seeking to re-open the proceedings – what was then called a Rice & Asplund application. That was dismissed on 15 June 2023 along with a number of applications in a proceeding. These reasons should be read together with the reasons delivered on 5 June 2023.
For reasons that I shall now outline, the father’s application to reopen the litigation is again unsuccessful.
Issues for determination
Whether there has been a significant change in circumstance so as to justify revisiting the Final Parenting Order made on 31 May 2021.
Whether a Harmful Proceedings Order should be made.
LITIGATION HISTORY
The proceedings were first commenced by the mother on 19 January 2018 when an initiating application was filed seeking a recovery order due to an alleged holding over of the child by the father.
An Order was made on 1 May 2018 for the child to live with the mother and to spend time with the father building up to two days with one overnight.
An Application in a Case was then filed by the mother on 25 January 2019 seeking a second recovery order. An Order was made for the return of the child to the mother. The father did not comply and a recovery order was issued and the Australian Federal Police returned the child to the mother’s care. On 12 October 2020 an Order was made for the father to return the child to the care of the mother and a recovery order issued to lie on file.
The contested trial took place on 27, 28, 29 October and 6 November 2020.
On 6 November 2020 the judgment was reserved; however, an interlocutory order was made that the mother have sole parental responsibility and the child live with her. The child was to spend time during the day with the father, conditional that he not be under the influence of illicit drugs and that time to occur in a public place. The mother was also authorised to require hair follicle testing of the father each six months. The father’s time was to be suspended in the event that a hair follicle test was positive for illicit drugs.
The Final Parenting Order was then made on 31 May 2021, and the terms were as previously outlined in these reasons.
On 29 November 2022 the father then filed an application to reopen proceedings. He sought interim orders in that application and also filed applications in the proceeding on 8 December 2022 and 24 March 2023. Those interim applications were dismissed on 15 June 2023 together with the Rice & Asplund application.
Matters have not remained static since then.
On 11 March 2024 the father filed a contravention application. Procedural orders were made on the 4 April 2024, 19 April 2024, and 5 June 2024.
On 9 August 2024 the Contravention Application was dismissed by the court.
On 26 August 2024 the father then filed the Initiating Application leading to this final determination. In that application the father seeks both interlocutory and final orders in the same terms, being orders for equal shared parental responsibility, X to live with the mother and spend time with him for five nights each fortnight. He also proposes what are fairly standard detailed orders regarding special days, holidays, changeovers, telephone communication restraints and the like.
Notably in the orders sought by the father the hair follicle testing requirements that are currently in place are removed, although the father does propose orders that restrain him from being under the influence of illicit or any prohibited substance of any kind while the child is in his care and from consuming or engaging in any illegal drugs or prohibited substance 48 hours prior to spending anytime with the child or having an illegal drug at his home.
Since the filing of the current Initiating Application, the mother has filed Response material as required by the Rules and other documents as ordered. Procedural orders have been made by this court as follows:
(a)On 30 September 2024, where the parties appeared and the matter was listed for a Compliance Hearing,
(b)On 1 October 2024, 3 October 2024, and 11 October 2024 Orders were made in chambers with no appearance required by the parties,
(c)On 31 October 2024, where the mother attended but there was no appearance by father,
(d)On 14 and 15 November 2024, Orders were made in chambers,
(e)On 24 January 2025, where the matter was listed for a compliance hearing, and where both parties attended.
The contested hearing then took place on 31 January 2025. It is worth noting that despite the availability of funding for legal representation through the s102NA scheme the father chose to be self-represented in these proceedings. A s 102NA banning order prevents parties directly cross-examining each other and triggers funding for legal representation that is neither means nor merit tested. There is a family violence protection order in place and it was intended, at the time the order was made, for cross-examination to occur. Ultimately no cross-examination occurred and the matter proceeded on the papers with oral submissions.
THE EVIDENCE
The court has considered the material read and relied upon by each party and material tendered in accordance with the Exhibit List. The court was also assisted by the parties’ Outline of Case documents.
THE LEGAL PRINCIPLES
Reconsideration of Final Parenting Orders
Section 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) provides:
Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(bwhether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
Section 65DAAA was inserted into the Act by the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”), which commenced operation on 6 May 2024. This section codifies the well-established principle which first came to prominence in this jurisdiction in the case of In the Marriage of Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”). The starting point for the principle is that the court should only allow parties to bring applications to vary final parenting orders if there has been a significant change in circumstance and it is in the best interests of their children for that to occur.
The Full Court has confirmed[1] that the legislation is a codification of the rule in Rice & Asplund.
[1] Ridicki
In applying section 65DAAA, I am satisfied that the case law that arose from the case of Rice v Asplund remains relevant other than where ruled out by the legislation.[2] In Whitehill v Talaska[3], it was confirmed that:
6. Final orders are meant to be final…The rule in Rice v Asplund was a body of Judge made law to the effect that once final parenting orders were made further litigation about parenting orders would not be heard unless there had been a sufficient change in circumstances that warranted reopening litigation about children’s arrangements. The settled rationale of the rule was that repeated litigation about children was not usually in the best interests of the children involved and should be avoided.
[2] Whitehill & Talaska [2024] FedCFamC2F 768.
[3] Ibid.
In Rice & Asplund Evatt CJ held (at 78,905) that the Court:
…should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, 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
The case of Caston & Caston [2020] FCCA 2162 (“Caston & Caston”) helpfully summarised the law in relation to Rice & Asplund matters and at [32] is authority that this issue can and often should be decided as a preliminary issue:
Thus, a threshold issue is to determine whether the applicant has demonstrated that there are circumstances which require the Court to embark on the serious step of reconsidering how the welfare of the child should best be served.
The case of Caston & Caston is an authority that the principles in Rice & Asplund fall into three broad factors for my consideration:
(a)The length of time the child has been in a particular situation;
(b)Consideration of the earlier decision and reasons for that decision; and
(c)The possible advantages and disadvantages of a change.
Caston & Caston also helpfully states[4]:
the Court should not lightly entertain an application to alter a final parenting judgment, particularly because the important interests of children are unlikely to be served by frequent displacement or the uncertainty of prolonged or repetitive proceedings. Just as the finality of litigation is an important consideration, so too, the adverse impact of repeated litigation is inimical to a child’s well-being and so contrary to their best interests. In short, enduring conflict between parents is itself harmful to children;
(Footnotes omitted)
[4] Caston & Caston [2020] FCCA 2162 at 34.
The purpose of the principle is to discourage endless litigation. In the Marriage of McEnearney [1980] FamCA 43 Nygh J noted:
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.
This principle is repeated and affirmed in innumerable cases. [5]
[5] To name but a few: Murphy J in Walter & Walter [2016] FamCAFC 56 at [109], Evatt CJ in In the Marriage of Zabaneh [1986] FamCA 18, and the Full Court in Marsden & Winch [2009] FamCAFC 152 at [48] – [50]
Searson & Searson [2017] FamCAFC 119 makes it clear that the onus is on the party seeking to vary the order to establish that there has been a sufficient change of circumstances to warrant re-opening parenting matters, and for the purposes of the exercise the evidence must be assumed to be accepted.
When a hearing on this issue is conducted on the papers, as in this case, the evidence of the party seeking the change must be taken at its highest when deciding whether a sufficient change of circumstances has occurred.[6]
[6] Shan & Prasad [2020] FamCAFC 189, Defrey & Radnor (No 2) (2021) FamCAFC 139.
The test to be applied is, having considered whether there is a change of circumstances, if it is in the children’s best interests for the final order to be reconsidered.
In Carlyon & Graham [2024] FedCFamC1F 443 Schonell J drew the distinction between assertions based on belief and assertions based on fact. His Honour concluded:
50. Much of the mother’s affidavit and that of her sister constitutes assertions based on belief rather than fact. Their respective belief, irrespective of how strongly it may be held, is not evidence sufficient to engage the determination required under s 65DAAA. The mother bears the onus of establishing that there has been a significant change of circumstances and that it is in the child’s best interests to reconsider varying the final parenting orders. That must be sourced in fact not belief.
Harmful Proceedings Order
What was formerly known as a vexatious litigant order is now called a harmful proceedings order and is codified at section 102QAC of the legislation. That section provides as follows:
102QAC Making harmful proceedings orders
Making harmful proceedings orders
(1) A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:
(a) the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b) in the case of child-related proceedings (within the meaning of Part VII)—the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
Note: Proceedings includes cross-proceedings and incidental proceedings (see subsection 4(1)).
(2) For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a) psychological harm or oppression;
(b) major mental distress;
(c) a detrimental effect on the other party’s capacity to care for a child;
(d) financial harm.
(3) In determining whether to make an order under subsection (1), the court may have regard to:
(a) the history of the proceedings under this Act between the first party and the other party; and
(b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
(4) The court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings.
(5) The court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(6) An order made under subsection (1) is a final order.
Order about notifying other party in relation to application for leave etc.
(7) If the court makes an order under subsection (1), the court must also make an order as to whether the court is to notify the other party, in the event that the first party makes an application under section 102QAE for leave to institute proceedings against the other party, of either or both of the following:
(a) that the application has been made;
(b) if the application is dismissed—that the application has been dismissed.
(8) The court must have regard to the wishes of the other party in making an order under subsection (7).
The decision whether to make a harmful proceedings order is discretionary, provided the court is satisfied that the mother has suffered harm in accordance with the definition at s 102QAC(1) is met. In child-related proceedings such as these, the child’s best interests and the interests of justice are always the guiding lights.
APPLICATION OF THE LAW - S65DAAA (THE RULE IN RICE & ASPLUND)
As I said the last time this matter came before the court, I do not need to make findings. The law requires me to take the father’s evidence at its height. And the father’s evidence has not changed – it is his legal argument that has changed.
I do not intend to repeat the consideration process I undertook in my previous decision of 15 June 2023; however those Reasons should be read in conjunction with these in order to obtain the complete picture.
The father refers to and relies upon the Narcotic Drugs Amendment Act 2016 (NDDA) and the Disability Discrimination Act 1992 (DDA). The father alleges direct discrimination by myself and the mother such that this court and the mother have not made any “reasonable adjustments” due to his disability. He has declared his disability - being medical conditions.
The father misunderstands the relevance of DDA, the NDAA, the Constitution, and the Fair Work Act 2009 – all of which he references in his Outline of Case document. The father is not here as an employee or contractor who is being discriminated against because of his diagnoses. He has not been disadvantaged in terms of his diagnoses in how the proceedings were conducted – in fact he had the opportunity to be legally represented and supported in that way but chose not to take that path. He is in this court as a parent where the legislation provides that the child’s best interests are paramount.
What the court weighs up is the evidence as it is relevant to the best interests of the child. The father’s diagnoses are relevant factors, but only so far as they impact on his capacity to parent and meet the needs of the child. His diagnoses do not lift him up to become the paramount consideration of the court – that pinnacle must always belong to X.
This court has not told the father he cannot take prescribed cannabis, as he suggests. He can do as he chooses – what this court must ascertain is whether this has an impact on his capacity to parent and in particular if there are safety concerns for the child arising out of his use of cannabis – whether prescribed or otherwise.
The father argues that Dr B’s letters support his argument. They are indeed a somewhat impassioned plea of support for the father, but they do not address the issues that I clearly raised as unanswered questions when this matter last came before the court. I address those unanswered questions later in these Reasons.
The father requests that his disability be recognised by the court, however it is and always has been. But in determining living arrangements and care responsibilities for children this court is guided by the Family Law Act 1975 as to the best interests of the child. The father’s disability does not prevent him from time spending with the child and he is indeed currently spending regular time with X.
Change in Circumstances
The first issue for consideration is whether there has been a significant change. In summary the applicant relies on the following:
Outline of Case document
In the Outline of Case document the father states that he has experienced direct discrimination from this court, identifying that in the following ways:
(a)He submits that he has presented insurmountable evidence that he has an officially recognised disability. This is not disputed. In the reasons of 15 June 2023 the diagnosis is referenced and accepted. That ground must therefore fail.
(b)He submits that he has presented insurmountable evidence since late 2020 of his lawful cannabis prescription and a TGA approval since late 2020. This is not disputed. In the reasons of 15 June 2023 the fact that he is in receipt of a prescription for medicinal cannabis is referenced and accepted. That ground must therefore fail
(c)He submits that he has provided evidence that he was not on illicit drugs on four separate hair follicle drug tests in late 2022. It is not disputed that the father undertook those hair follicle tests, and that some of them were positive for THC. In making the determination in 2023, the hair follicle tests was a significant factor considered by the court. The reasons of 15 June 2023 address that issue. It is not new that the father believes that because he has a prescription it must be accepted the tests are in same way irrelevant. I did not agree in 2023 and I do not agree now. That ground must therefore fail.
(d)He submits that the mother and this court need to respect all laws of this country in conjunction with the Family Law Act 1975, arguing that the Family Law Act 1975 is not the only act relevant in this case. I address this ground elsewhere in these reasons. This ground must also fail as the father is not adducing fresh evidence, he is changing his legal argument.
The court does not dispute the father’s right to choose the form of medication with which he treats the diagnoses of medical conditions. That has been considered by the court and determinations made since the diagnosis. It is however only one of the factors to consider in determining the child’s best interests. The father seems to believe that his diagnosis and the legal prescription override all other considerations set out in section 60CC of the Family Law Act 1975. That is simply incorrect.
The Father’s affidavit of 29 November 2024
In this document the father states that the mother has “hoodwinked” the court and is exercising coercive and controlling behaviour. The bare statement of those allegations are not evidence, it is simply his belief and beliefs are not evidence. Further it is the father who is the respondent to a Family Violence Protection Order made in the mother’s favour whilst his own such application was dismissed.
I do not accept that the mother has hoodwinked the court. The trial judge made his findings based on the entirety of the evidence received during the course of a four day hearing in 2020.
The father states that the mother has not complied with the court order. There are two issues as to that statement. Firstly, it is a bare statement of opinion. Secondly this is a s 65DAAA hearing not a contravention hearing. That said, contraventions can be the basis of an argument that there has been a significant change in circumstances, however I do not accept that to be the case here as the father’s contravention application was dismissed.
The father argues that his consumption of prescribed cannabis is not illicit because it is prescribed in accordance with legislation. Counsel for the mother submits that the trial judge was well aware of the father’s consumption of medicinal cannabis and that it is clear on the face of his reasons that both prescribed and non-prescribed drugs were an issue of concern.
Tellingly, the father complained in submissions that the trial judge was wrong to refer to his use of prescribed cannabis as a “ruse”. His Honour was however quite entitled to make such a finding after a four day trial. Further I do not forget that at the time of the trial the father had not been diagnosed with one of the medical conditions, though I do not know if he had any symptoms at that time.
The father has tendered letters from three medical professionals. They were not annexed to affidavits of those doctors and nor were those doctors made available for cross-examination. That therefore impacts the weight the court places upon that evidence. While the father claimed that he was unaware of the need to bring those witnesses to court, I do not accept that for the following reasons:
(a)he has been to court for contested hearings a number of times;
(b)he told me at the compliance hearing that he hoped to file affidavits and call evidence from supporting witnesses; and
(c)the very same issue was raised at the hearing in 2023.
Nonetheless I have reviewed the letters from the medical practitioners and am not satisfied that they advance the father’s case as they do not support either a significant change in circumstance or the child’s best interests, for the following reasons.
The letter from Dr C dated 17 September 2020 which the father quotes in his affidavit and the letter tendered dated 27 May 2024 simply confirm that the father takes medicinal cannabis and includes the father’s self-report that he has found it “helpful”. I also note that the first letter as quoted predates the last attempt to re-open proceedings. The contents of both letters are the same. In my view they are letters of support from a previous employer rather than medical opinions from a treating medical practitioner. This evidence is therefore of no utility in these proceedings, even setting aside the question of admissibility.
The letter from Dr D dated 31 May 2024 which was tendered is also unhelpful. Setting aside the admissibility issue, this letter simply states that he has known the father “personally and professionally” since 2020, that he is the prescribing doctor for the medicinal cannabis, and that it is prescribed for “medical conditions”. It does not tell me what medical conditions, whether there are any alternatives to this form of treatment, and what the impact may be on the father’s capacity to parent.
The letter from Dr B dated 23 July 2024 which was tendered is of limited utility. He states as follows:
I have known [Mr Caceres] personally and professionally, since 2008.
I confirm that he has been prescribed medicinal cannabis from a safe, reliable and legal source, by [Dr D] at [E Medical Clinic].
The prescriptions are dispensed regularly by [a pharmacy].
He received his first script [in late] 2020.
The medicinal cannabis has been prescribed for the treatment of the well recognised medical conditions […].
I have observed that the use of medicinal cannabis by [Mr Caceres] has provided an ongoing and beneficial therapeutic effect on him.
Stopping the treatment would have a detrimental effect on his health and well being.
I confirm that I have copies of Drug tests on his hair, performed by [F Clinic]). The first test is dated [late] 2020, and resulted in ‘no drugs detected’. This test hair samples were taken in the laboratory and transported in a sealed tamper proof container without complete Chain of Custody.
This Test had been performed after [Mr Caceres] had started regularly taking medicine cannabis.
Dr B does state the medical conditions which the prescription treats – for what that is worth as he is not the prescribing doctor. The court was however aware in 2023 as to the purpose at that time of the prescription. Dr B expresses the opinion that from his observations the prescription is of benefit to the father and that stopping treatment would be detrimental. He does not advise whether there are any alternatives to this form of treatment and what the impact may be on the father’s capacity to parent. Even taking this evidence at its height, it does not go far enough to satisfy the three questions raised in the reasons of 2023.
While Dr B tells me the medication is beneficial to the father and that there would be, in his opinion, detriment if the father ceased the medication, the scope of this enquiry is whether there has been a significant change and whether it is in the child’s best interests to allow the parenting orders to be reviewed.
The father’s affidavit also states that the father completed a complaint to the Humans Rights Commission in late 2024. He quotes from his support coordinator that he has experienced discrimination due to his disability. Again this is opinion and not evidence. It also overlooks that the Final Parenting Order was made prior to the father’s diagnosis of a medical condition, and was based on the totality of the evidence available at that time. That argument must therefore fail.
The father’s complaint that this court has exercised discrimination in making the 2023 determination, after the diagnosis of a medical condition, must also fail as I considered the father’s diagnosis not in terms of capacity to parent but in terms of whether it was a significant change. I note that the tendered document from his support co-ordinator, largely quoted the father and made statements which are not supported by the evidence before the court, such as that the mother has been domestically violent towards him. That document is therefore of little assistance to the court.
I do not accept that the fact that there is a Final Parenting Order allowing the father substantial and significant time with his three older children is either proof of discrimination or proof that his capacity to parent is above question. It is an order made at a different point in time on a different factual matrix. Further, that Order requires the father also to be free of drugs while those children are in his care.
I do not accept that the fact that the father had a prescription for cannabis when he returned hair follicle tests positive for THC establishes that he was drug free. In theory someone who has a prescription is not prevented from also using drugs on a recreational basis or form misusing that prescription. The father made submissions that it was not possible to differentiate on those tests between prescription cannabis and that obtained from the streets, but he brought no evidence to that effect. Those arguments therefore took the matter no further.
The father submitted that he could not afford to obtain the evidence sought by the court to address the three unanswered questions - but there is no evidence that he even made the attempt to do so. Even more puzzling, neither Dr B or Dr D addressed the issues in their letters written only last year. The court is left to wonder why that has not been addressed.
The father alleges that the mother has perpetrated coercive control by persuading this court to make determinations other than those sought by him. He alleges that the mother has perpetrated family violence by withholding the child. I do not accept that there is evidence before the court that the mother is exerting coercive control or other forms of family violence by engaging in these proceedings, again that is the father’s opinion rather than evidence.
I will not comment on allegations made by the father against the mother’s former lawyer or the mother’s current counsel, the latter being made at the hearing. There is nothing that either has done that is not within the remit of their engagement to represent the mother in the litigation.
The father quotes a letter written in his support by Dr B on 8 November 2022. He acknowledges that this is not new evidence. I do not doubt that the father loves X very much and wishes to spend more time with her. No one has questioned that. I understand that the father is very distressed by the limited time that he is currently spending with the child. I do not, however, accept that the current situation is the fault of the mother or the court. Further the father’s sorrow and his blaming of the mother and the courts is again not new.
I do not accept that the limited time the father spends with the child is as a consequence of discrimination against him due to his disability and the treatment that he has accepted. The father has had a clear pathway forward since the Final Parenting Order was made on 31 May 2021, but he has rather focussed on his belief as to the injustice of the Order.
Oral submissions
In his oral submission the father relied on two factors as a change in circumstances:
(a)That the diagnosis of his medical conditions is now recognised through the granting of a disability support pension and NDIS funding; and
(b)the courts’ failure in the previous proceedings before myself and the trial judge to consider the DDA and the NDAA.
I do not accept that the recognition of the husband’s diagnoses by the government through disability pension approval and NDIS funding is any change in circumstance from when the matter was before the court in 2023. The diagnosis of a medical condition was a new matter then and it was considered and the court was not satisfied that it was sufficient for a change to the final parenting orders made in 2021. I do not intend to repeat my Reasons here. The mere fact that the applicant has since obtained recognition through funding from the government when the court had already accepted that he had the diagnoses, is not a significant change.
In relation to the father’s reference to other legislation, I am of the view that the father misunderstands the role of this court in hearing his application. Further the court does not need to cite the legislation to have considered it. For example the trial judge and myself both considered that the father has a prescription for cannabis. In and of itself acknowledging the prescription acknowledges the legality of the prescribed substance.
When I asked the father to take me to the particular provisions of the DDA and the NDAA, he was unable to do so. Later in the proceedings he took me to section 47 of the DDA but that did not say what he thought it did.
Section 3 of the DDA states:
The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
Section 2A of the NDAA states “The object of this Act is to give effect to certain of Australia’s obligations under the Single Convention on Narcotic Drugs, 1961, as in force from time to time.”
The Father express the view that he has been discriminated against in these proceedings as neither myself nor the trial judge considered either piece of legislation. Particularly he expresses that he is in receipt of a legal prescription for medicinal cannabis from an authorised provider and as such he is in not in receipt of illicit drugs. I have already noted that there was no submission made that the prescription received by the father is not in accordance with the legislation. It is not a new consideration.
I am satisfied that this court has not discriminated against the father. The Family Law Act1975 provides that in ascertaining the living and care arrangements for a child the paramount consideration is the best interests of that child. The legislation requires the court in particular to consider whether a child is safe. People under the influence of drugs, whether prescribed or non-prescribed, often have impaired capacity. There are many prescribed drugs which, for example, state that those prescribed must not drive.
However, because he receives a prescription and because he also has a diagnosis at which that prescription is aimed, the father is of the view that a failure to consider in Reasons both the legality of the prescription and his diagnosis, which the prescription is aimed to assist, is a form of discrimination. I disagree. The trial judge considered the father’s use of prescribed cannabis together with his conceded long standing usage of cannabis, and he formed the view at the conclusion of a contested hearing, that the father’s conduct in obtaining a prescription in the lead up to the trial was a “ruse”. He was entitled to make that finding; he saw cross examination and heard evidence not just from the father but from experts.
During the hearing the father expressed that the court, in providing to him a copy of relevant legislation, made him feel discriminated against, as did some of the submissions made by counsel for the mother. He expressed very clearly that he would make a discrimination claim if he was unsuccessful in his application as he believes that he has been discriminated against.
The father also raised the fact that there are markedly different orders in place as regards his time with the three children from his earlier relationship. That Order was, however, made long before the decision of the trial judge in this matter and the existence of the Order was part of the father’s argument when the matter came before the court in 2023. That Order is not new.
The father does not provide the evidence that the court asked him for when last he was before the court – in particular he has not provided evidence as follows: [7]
·There is no independent evidence from an expert to explain the positive hair follicle tests, whether the tests could differentiate between prescribed cannabis and illicit drug use.
·There is no independent expert evidence that the father has to be on medicinal cannabis. There is no evidence that there is no alternative treatment and that his condition would be impacted adversely if he was not on that medication.
·There is also no evidence that the medicinal cannabis does not impact his capacity to parent in the way that is feared by the mother.
[7] Paragraphs 100 - 102
While the father tenders and quotes correspondence from Dr B to his affidavit, there is no affidavit from Dr B. The letters are not in admissible form, and even if they were they do not assist his case. The letter dated 23 July 2024 whilst it says that the prescribed cannabis appears to have assisted the father, it does not address whether there are alternative medications, it does not address the impact of the prescribed cannabis on his capacity to parent and it does not tell me whether it masks any illegal drug use. I do not even know from that letter whether Dr B is the father’s treating doctor for the diagnosis, noting he is not the prescribing doctor for the medicinal cannabis.
There is no significant change in circumstance raised by the father since this matter came before the court in 2023.
The mother while opposing the application does raise new evidence, being the making of a Final Family Violence Protection Order which names her as the aggrieved and the father as the respondent. That FVPO also names the children, the mother’s partner and, interestingly, the father’s former partner, as protected persons.
The mother also tenders correspondence sent by the father to her employer, in which he asks them to investigate her “cruel, inhumane and degrading treatment” of his family. There is also correspondence which the father has sent to this Court, the Commonwealth Attorney General, the Prime Minister, other politicians, the Human Rights Commission and various third persons and media outlets.
I am satisfied that in and of themselves the correspondence and the Protection Order are not a significant change in circumstance. They do not reflect well on the father, but his dissatisfaction with the legal system and the current order is not new and nor are issues of family violence.
The father is an intelligent man and an experienced litigator. He was self-represented in proceedings with his former wife in the Full Court, he was self-represented before the trial judge in this matter and now for the second time before me. He is familiar with the court process and the requirements of evidence. The 2023 judgment told him what the court wanted to see and he has not addressed those issues; not even to the extent to explain why he has failed to do so other than to make submissions in court that he could not afford the reports. However he has obtained reports from his treating doctors, they just do not address what was needed.
Having considered those matters I am not satisfied that the father has shown me any significant change in circumstances that justify relitigating parenting matters and most importantly putting this child through the wringer of further litigation.
Section 60CC Factors
Despite the fact that I am satisfied that there are no significant changes in circumstance, I will briefly address best interests simply by stating that it is impossible for me to make an assessment that it would be in X’s best interest to bring the matter back before the court in circumstances when there is so much that I do not know and that includes:
(a)What is the impact on the father’s capacity to parent of his drug use – prescribed or otherwise?
(b)Is it safe for X to spend extended time with her father whilst he uses medicinal cannabis?
(c)Are there alternative treatments that the father could access that would not raise these questions but would support the father to manage his diagnosed conditions?
So there remain questions to which this court does not have the answer. The mother is of the view that the father has focussed on his right to take medicinal cannabis rather than on X’s best interests. I am inclined to agree.
APPLICATION OF THE LAW – HARMFUL PROCEEDINGS ORDER
I am asked to make a harmful proceedings order, such that the father would be unable to commence proceedings in this court in future unless he could persuade a judge to give him leave.
For the court to make a harmful proceedings order, it need not be satisfied on the balance of probabilities that harm will occur if he again files in this court, but rather the court must be satisfied that there are reasonable grounds to believe there will be such harm.
The intention is to prevent the infliction of harm on the mother and/or the child. “Harm” is defined in the legislation to include psychological harm or oppression, major mental distress, a detrimental effect on the other party’s capacity to care for a child; and financial harm. This definition is not exhaustive. The explanatory memorandum reflects the intention to allow the courts to intervene before proceedings are served on a party and therefore to limit the harm that may be caused by further applications.
Earlier in these Reasons I outlined in brief the Litigation History in this court and have considered that history again herein addition to the matter set out below.
The mother gives unchallenged evidence that at the final hearing in 2020 the father stated that he would only stop his behaviours if the court “gives in to his demand for a week about arrangement … and unless that happens, the Court can expect to see him continue to behave in the same way”.
The mother notes that the current application is essentially based on the same material as the last application to re-open child matters. I agree.
In making the assessment I am also able to consider proceedings in other jurisdictions. The father was previously engaged in proceedings concerning his former partner and then appealed that decision, seeking equal time. He was unsuccessful.
The parties to these proceedings were engaged in litigation in the state courts last year where the mother successfully obtained first a temporary and then a final Family Violence Protection Order. That application was based on the father’s conduct which included sending correspondence to her employer on more than one occasion and correspondence to politicians, the courts and third persons. The father’s cross application for a Protection Order was dismissed.
The mother submits that since the 2021 Final Order the father has been vigorous in filing material. When the mother filed for a Protection Order in early 2024, the father subsequently retained the child in his care for two days stating that he was acting in accordance with the Order. The father subsequently filed an application for a Family Violence Protection Order himself. That application was dismissed.
The father then filed the Contravention Application in this court, which was subsequently dismissed. Upon dismissal he then filed these current proceedings within a matter of weeks.
The father has assured this court both in submissions and in his material that if he is not successful he proposes to file proceedings alleging discrimination against him by the court and by the mother. So there is more litigation proposed.
I am satisfied that the father has become more litigious in the last year. I am satisfied that the current application before this court is based essentially on the same evidence as the Rice & Asplund application decided in 2023. I am satisfied that the father is determined to continue in endless litigation.
The mother gives evidence of the harm caused to her in terms of financial expense, time spent drafting material and attending court, and the toll on her health in the form of stress and mental distress.
There is no medical evidence of the psychological impact on the mother. I accept however that any litigation is stressful and that repeated and ongoing litigation in multiple jurisdictions could be overwhelming. I have also considered that in addition to the actual litigation there are the letters written by the father to the mother’s employer and others to the media, the government and to third persons.
While harm is defined non-exhaustively in s 102QAC(2) I am satisfied that something more than the usual stress and distress associated with litigation is required, as s 102QAC(2) refers to “major mental distress” as one kind of harm. I am of the view that the impact psychologically on the mother has not been established to a threshold that I can consider in this application without independent evidence of that.
I am however satisfied that the volume and nature of the proceedings together with the threat of future proceedings constitutes oppression. To oppress someone incudes to treat them cruelly or to weigh them down. The mother’s affidavit evidence as to the impact on her and her time with the child fulfills that definition – in particular the hours spent drafting response material and attending court events rather than spending time with the child and her other family members and the impact of the father’s communications with her employer.
Turning then to the financial harm alleged, in the last 12 months alone the father has filed the Initiating Application to re-open the proceedings and the Contravention Application in this court, he filed a Family Violence Protection Order application in the state court and he tells the court that a complaint has been made, or at least prepared, to the Human Rights Commission. Each of those proceedings require the mother to engage and either pay legal fees or herself take the time to prepare the necessary material – which still involves filing fees. The father has been unsuccessful in his application to re-open proceedings for a second time, he was unsuccessful in the family violence proceedings and he was unsuccessful in the Contravention Application.
The mother was fortunate that her solicitor at the hearing of this matter was government funded, but that will not always necessarily be available to her, noting that funding for the scheme is not guaranteed.
Having considered those matters I am satisfied that the mother would suffer harm, including oppression and financial harm, if the father were allowed to continue to file proceedings in this jurisdiction. A view of the cumulative nature of the unremitting litigation in this court together with his conduct in other jurisdictions is sufficient to raise a real red flag.
IN CONCLUSION
What the court was asked to determine today is not whether the current Final Parenting Order is in this child’s best interests. The court is asked to consider whether there has been a change in circumstances of such significance that it would be in X’s best interests to review the Final Parenting Order that is currently in place.
In the 2023 Reasons, when the father first sought to re-litigate child matters, the court considered the father’s diagnosis of a medical condition and what that meant. I am not going to do that again. The fact that he now has a disability pension and NDIS funding does not add anything other than confirm what was not previously disputed.
Unfortunately the father’s application appears to be focussed on his rights rather than those of the child. I have no doubt he loves and wants to see more of X. He knows exactly what evidence the court needs to review the Final Parenting Order made in 2021 and he has failed to provide it. Either he is unable to do so or he has allowed himself to be distracted by feelings of discrimination and injustice to focus on matters which are not within the scope of the application before the court.
I therefore make orders dismissing the father’s application.
I shall also make a harmful proceedings order.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 6 February 2025
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