Noble and Kingsley
[2017] FCCA 2309
•13 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOBLE & KINGSLEY | [2017] FCCA 2309 |
| Catchwords: FAMILY LAW – Parenting application – interaction of r16.05 Federal Circuit Court Rules, Rule in Rice & Asplund and application of best interests principle – where clearly not in best interests of children for application to continue. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Federal Circuit Court Rules 2001, r.16.05 |
| Cases cited: Barbey & Tuttle (2013) FLC 93-534 Carriel & Lendrum [2015] FLC 93-640 CDW & LVE [2015] WASCA 247 Clifford & Mountford [2006] FMCA Fam 450 Marsden & Winch [2009] FamCAFC 152 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 |
| Applicant: | MR NOBLE |
| Respondent: | MS KINGSLEY |
| File Number: | WOC 50 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 8 September 2017 |
| Date of Last Submission: | 8 September 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 13 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Stacks Heard McEwan |
| Solicitors for the Respondent: | Williamson Isabella Lawyers & Public Notaries |
ORDERS
The Mother’s Application filed 6 May 2016 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Noble & Kingsley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 50 of 2013
| MR NOBLE |
Applicant
And
| MS KINGSLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, X and Y, who are 10 year old twins currently living with their Father. By way of an Amended Application filed in December last year, the children’s Mother seeks to set aside orders made in the Court on an undefended basis on 29 January 2015. These reasons for judgment explain why the Court has declined to set aside the order in question.
Background
On 29 January 2015, the Court made the following orders in the absence of the Mother:
That all previous parenting orders be discharged;
That the father have sole parental responsibility for the children;
That the children live with the father;
That the children spend time with the mother as agreed between the parties, with such time to be on a supervised basis.
The orders were made on an undefended basis so far as the Mother was concerned, but with the consent of both the Father and the Independent Children’s Lawyer. The matter had been listed for final hearing on that date. The Father and the Independent Children’s Lawyer were both represented by Counsel. The Court is prepared to accept the Mother’s contention that the orders were made shortly after 10.00am on the day listed for hearing and that she arrived about 10 minutes later.
By way of background, the matter had been set down for hearing 29 January 2015 by consent on 27 November 2014. The Mother was represented by lawyers at that time. When the Court made the orders now sought to be set aside, the Court had before it an Expert’s Report dated 25 November 2013 prepared by a Family, Child and Adult Psychiatrist, Dr C. Dr C’s report was also in evidence for the purposes of the Mother’s present application to set aside the orders in question. Dr C deals quite extensively with the Mother’s mental health issues.
At paragraphs 17-18, for example, he refers to the three aspects to her mental illness. There is the personality aspect of emotional regulation and difficulties with insight and knowing how to approach the children and put their needs above her own emotional needs. The second aspect is the Mother’s alcohol abuse and binging of alcohol which, Dr C opined, could have a direct adverse effect on the children when she is affected by alcohol. The third aspect is her acute psychotic episodes that require hospitalisation when she is acutely unwell.
Dr C’s recommendations commence from page 20 of his report. He recommended that the children remain with the Father, with whom they had in fact been for several years. He recommended that there be some cautious, graduated contact with the Mother, with the main determining factor to be the Mother’s mental state. He thought that the contact needed to be, initially, supervised contact for two hours per week. It could progress to becoming unsupervised, though monitored or accompanied by other supportive adults.
The time might increase to four hours per week within six months, but should remain at that level for the next three years, depending on the Mother’s stability and mental health. In the closing paragraph of his report, on page 22, Dr C noted that whilst the Mother has alcohol issues, personality issues and a psychotic illness, she is still important to the children and there needs to be some ability and capacity to maintain a connection with the Mother. The Court observes that the order it made on an undefended basis was not inconsistent with Dr C’s recommendations.
The evidence of the Father at the time suggested a willingness to facilitate the children’s relationship with their Mother, subject to her mental health being satisfactory. The Mother’s mental health was obviously an important issue in this case, both at the time that the orders were made and subsequently. By way of further historical background, the Father who is nearly 60 years old and the Mother who is 45 years old, commenced cohabitation in (omitted) 2005 and separated in July 2012, with the children then living with the Father.
The Mother suffered unstable mental health in the post-separation period. She had numerous mental health admissions. In the period after the orders were made, the Mother did not spend time with the children. She says that she could not contact the Father. The Father has a different version of events. It is not necessary to determine this factual issue in the present context. The Mother commenced these proceedings in May 2016. The application was opposed on the basis of the rule in Rice & Asplund (1979) FLC 90-725 - in other words, that there had not been any change in circumstances from the children’s perspective and, in any event, it was not in their best interests for a different order to be made.
The Mother’s case, however, was that it was in the best interests of the children that a different order be made and that her application was also framed under rule 16.05 of the Federal Circuit Court Rules 2001. The matter came before me on 9 February 2017. It was obvious to the Court that the Mother had not adduced evidence about her current mental health and the matter was adjourned to give the Mother an opportunity to do so. In the fullness of time, the Mother was able to obtain limited Legal Aid funding which enabled her to see a psychologist, Mr I, for the purposes of preparing a mental health assessment. The matter came before the Court on 8 September 2017. Mr L appeared on behalf of the Mother on this occasion and Mr R for the Father. They had both provided detailed written submissions and oral submissions were made on the day.
The Material before the Court
In her Application, the Mother relied on the following:
a)Initiating Application filed 6 May 2016;
b)Affidavit of the Mother affirmed 5 May 2016;
c)Notice of Risk filed 6 May 2016;
d)Amended Initiating Application filed 15 December 2016;
e)Affidavit of the Mother sworn 19 January 2017;
f)Expert Report by Dr C dated 25 November 2013; and
g)Expert Report by Mr I filed 1 September 2017.
In his Application for dismissal the Father relied on the following material:
a)Response filed 2 August 2016;
b)Notice of Risk filed 2 August 2016;
c)Affidavit of the Father sworn 2 August 2016;
d)Expert Report by Dr C dated 25 November 2013; and
e)Family Consultant Memorandum dated 9 April 2013.
The following documents were tendered in evidence:
| Exhibit No. | Description of Exhibit/MFI |
| R1 | Department of Human Services material |
| R2 | (omitted) Medical Practice material |
| R3 | (omitted) Local Health District material |
The Issues
The Mother’s case was based on two propositions: firstly, that in circumstances where final orders were made against her in her absence, rule 16.05 of the Federal Circuit Rules empowers the Court to vary or set aside the order on grounds which, she contends, are activated on the facts of this case. Secondly, the Mother contends that there has, in any event, been a significant change in her circumstances which would allow the Court to revisit the most appropriate parenting order for the children, consistent with the rule in Rice & Asplund. The Father contends that the evidence does not support either of the Mother’s contentions. These reasons will need to explore the interaction between rule 16.05 of the Federal Circuit Court Rules, the so-called rule in Rice & Asplund, and the relevant provisions of Part 7 of the Family Law Act 1975 (Cth) dealing with what is in the best interests of the children.
The Applicable Law
Rule 16.05 of the Federal Circuit Court Rules 2001 states:
16.05 Setting aside
(1)The Court may vary or set aside its judgment or order before it has been entered.
(2)The Court may vary or set aside its judgment or order after it has been entered if:
(a)the order is made in the absence of a party; or
(b)the order is obtained by fraud; or
(c)the order is interlocutory; or
(d)the order is an injunction or for the appointment of a receiver; or
(e)the order does not reflect the intention of the Court; or
(f)the party in whose favour the order is made consents.
(3)This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.
Decisions of this Court, including Clifford & Mountford [2006] FMCA Fam 450 and Barby & Tuttle (2013) FLC 93-534 establish that the usual considerations in a rule 16.05 application include:
a)the provision of a reasonable explanation for the applicant’s absence at the trial; and
b)material arguments available to the applicant that might reasonably lead to the making of any order different to that sought to be set aside and;
c)no prejudice to the party with the benefit of the orders sought to be set aside that cannot be adequately addressed by the Court.
The cases have noted that other relevant factors include:
a)whether a party with notice of the hearing disregarded the opportunity of appearing and participating in the trial; and
b)the delay in bringing the application to set aside the judgment and whether the other party has acted on the judgment; and
c)the conduct of the applicant since the judgment or order set to be aside was made.
The Respondent in this case has invoked what has commonly become known as the rule in Rice & Asplund suggesting that a Court must be satisfied of significant changes in circumstances before acting to vary an existing order. The intention of the threshold test is to prevent the re-litigation of the same factual circumstances that have already been considered by the Court. The Full Court in Marsden & Winch [2009] FamCAFC 152 stated at paragraph 50:
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 a 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.
More recently, the Full Court in Carriel & Lendrum [2015] FLC 93-640 at [57] stated that:
57. In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
The Full Court has recently (14 April 2016) delivered a judgment in a Rice & Asplund application. In Walter & Walter [2016] FamCAFC 56 Ainslie-Wallace J referred to the relevant legal principles at paragraphs 48-50:
In Rice & Asplund (1979) FLC 90-725 Evatt CJ said at [78,905]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the 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 for 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 …
Her Honour also confirmed at paragraph 51 that where the question of whether a sufficient change in circumstances has occurred is to be determined as the preliminary matter to the hearing of the Application, it is accepted that the Applicant’s evidence should be taken at its highest. Indeed, in the present application before this Court, it was agreed between the parties that the Rice & Asplund issue would be dealt with as a preliminary matter and on the papers.
Murphy J agreed with Ainslie-Wallace J that the appeal should be dismissed. At paragraph 85 of His Honour’s reasons he refers to the decision of Martin CJ of the West Australian Supreme Court in CDW & LVE [2015] WASCA 247 at [88]:
In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…
At paragraph 96 of the reasons for judgment of Murphy J he refers to comments made by Warnick J in SPS & PLS (2008) FLC 93-363:
Warnick J said in SPS that “[w]hat the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing”. Importantly, his Honour went on to say that “… [a]ccordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes”
At paragraph 102 of the reasons for judgment in Walter, Murphy J confirmed that not only can the rule in Rice & Asplund be applied at the outset of the proceeding, or at the end of a hearing, but that “the rule might also be applied at any point between the two”. The example that he refers to is after receipt of a Family Report or, indeed, any other Expert evidence. Thus, a Court might allow proceedings to continue up to a specific point, such as the receipt of further expert evidence, and then review the situation in terms of changed circumstance and best interests of the child.
At paragraph 110 of Walter, Murphy J restates what he describes in that paragraph as “the notorious fact” which he states is accepted both by authority and in the arguments presented before him. The notorious fact is that “continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.”
At paragraphs 113 and 115, Murphy J also makes some important observations:
It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
Thus, it seems clear that even where the evidence demonstrates a material change since the previous Order, a Court may well be entitled to nonetheless find that it is not in the best interests of a child for the proceedings to continue. Does the corollary apply? In other words, even if the Court finds that there is not a material change since the previous Order, can the Court nonetheless find that it is in the best interests of the child for the Orders to be revisited?
This Court believes that the answer is, probably, yes. The Court’s statutory responsibility to make Orders in the best interests of the child cannot, as a matter of law, be fettered by any agreement between the parents as to what they consider to be in the best interests of their child at a particular time. There are obviously good reasons why, in many cases, perhaps in the vast majority of cases, a Court would not readily intervene in those circumstances. That is not to say that the Court does not have the power to do so.
The rule in Rice & Asplund and, arguably, rule 16.05 of the Federal Circuit Rules when applied to a parenting case, do not supplant, or detract from the mandatory obligation on courts in s.60CA of the Family Law Act 1975 (‘the Act’) which states:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Thus, r.16.05 operates in a different sphere or context. If it were the case that r.16.05 operated in every undefended parenting order where the rule in Rice & Asplund could not be satisfied, or where it is otherwise not in the best interests of the children for the order to be varied or set aside, then the operation of r.16.05 would be elevated above the provisions of the Family Law Act itself. Hence, r.16.05 must be read subject to s.60CA of the Act which mandates that in deciding whether to make a particular order, the Court must regard the best interests of the child as the paramount consideration.
It would not make sense, for example, for rule 16.05 to operate in a way that almost axiomatically results in the setting aside or varying of undefended parenting orders, if in so doing the Court is making an order that is not in the best interests of the child. In any event, as r. 16.05 explicitly states, it is a discretionary power given to a Court or a Registrar, even if the requirements in r.16.05(2) are satisfied.
Thus, the Court must make an order that is in the best interests of the children in this case.
In this regard, the applicable law is, of course, Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Contentions Summarised
On behalf of the Mother it is contended that the present case is, in effect, the “classic” r.16.05 case. The order was made in the absence of the Mother, who attended Court as little as 10 minutes after the order was made. Indeed, the Mother’s written submissions are impliedly critical of the Court for not extending to the Mother more leniency. The fairness of that submission probably involves a consideration of what other cases the Court had listed on the day and thus whether it was practicable to await the Mother’s later arrival at Court. The Mother’s case is that she had lost her grant of legal aid, was representing herself and would have asked the Court to adjourn the case whilst she sought the reinstatement of legal aid.
The Father’s response to this is that even if the Mother’s contentions were accepted, she has not established - and the evidence before the Court most assuredly does not establish - that the outcome would have been any different. The evidence on which the Father relies in this regard will be discussed below.
The Mother’s Rice & Asplund contention is that there has been a significant change in circumstances, such as to warrant the Court reconsidering the matter. Implicitly, she contends that it is in the best interests of the children that the Court revisit the undefended order that was made. The Mother emphasises in this regard that she has not had contact with the children since the order was made, thus demonstrating the impracticality of those orders. In any event, the Mother contends that the mental health assessment that she relies on adequately addresses the concerns that the court-appointed Expert had about her mental health and this in itself would be a change in circumstances.
In response to this, the Father contends that when all the evidence before the Court is closely considered the Court will conclude that very little weight ought to be placed on the mental health assessment of Mr I dated 31 July 2017 and, indeed, the Court might be even more concerned about various aspects of the Mother’s parenting capacity than it was at the time the undefended order was made.
The Report of Mr I
Mr I’s report, dated 4 August 2017 is entitled ‘Psychological Evaluation’ and is annexed to his affidavit of 30 August 2017. His report was prepared on the basis of a history received from the Mother, a mental health assessment conducted by him, and he had regard to the report prepared by Dr C dated 25 November 2013. Mr I had available to him the final orders made 29 January 2015, as well as the documents filed by the Mother in the present proceedings but not the documents filed by the Father. The report sets out the history provided by the Mother. It also records the history given by her as to her current treatment. For example, at paragraph 2.6.2, Mr I records the Mother reporting to him that since 2012 she has been trying to lead an alcohol-free lifestyle, has managed to reduce her alcohol use significantly and has been abstinent for the past 11 months.
Mr I administered a number of psychological tests. At 3.2.2 he concludes that the Mother is currently not experiencing symptoms indicative of depression, anxiety or stress. At 3.3.2 he concludes that the Mother is currently not experiencing symptoms of depression. At 3.4.2 he concludes that the Mother is currently not suffering from emotional distress associated with mood and/or anxiety disorders. At 3.8.3, after administering the Paulhus deception scales, Mr I concluded that according to the PDS interpretative guidelines, the Mother answered all questions honestly and did not try to portray herself in a socially desirable manner. At 4.2.5 Mr I found the Mother to be a direct individual with no inherent need to mislead medical professionals about her wellbeing and psychological state. However, he diagnosed her as suffering persistent depressive disorder, and alcohol use disorder - severe – in remission.
He thought that the abovementioned depression was low-grade. Whilst falling short of a diagnosis, he found that the Mother showed limited symptoms indicating elements of borderline personality traits. Nonetheless, whilst acknowledging the limitations of his assessment, Mr I suggested that various factors such as life experiences, personal warmth and attachment and style, can suggest adequate parental functioning. His assessment did not reveal current mental health concerns but he did warn that relapse to alcohol abuse would likely trigger psychological difficulties, in particular depressive episodes. He also acknowledged, at 4.5.3, that high levels of stress and excessive alcohol use could also trigger psychotic episodes.
He recommended that the Mother would benefit from continued psychological treatment to cope with the emotional difficulties associated with depression and post-traumatic stress. However, he recommended that the children should be spending time with her without delay, provided the Mother remained abstinent and continued with her Antabus medication, completed her current treatment and continued further treatment as recommended. He suggested that the children ought to be gradually reintroduced into the Mother’s life, with their time initially being supervised, and fortnightly.
The Other Evidence
Documents were produced on subpoena by New South Wales Health, the Proper Officer Medicare, and the Manager, (omitted) Medical Practice. For the reasons set out below, the totality of the documents in evidence create a disturbing picture of the Mother’s health and in particular her mental health.
For example, a discharge summary dated 21 December 2015 relating to a mental health admission of the Mother between 11 December 2015 and 21 December 2015 contains the following statement:
19/12/15…Ms Kingsley reported that the hospital prescribed her Endone 5mg for neck and back pain secondary to depression. She stated that Endone is the only medication that helps as Valium makes her feel suicidal. Ms Kingsley became agitated and upset when the team advised her that Endone is not prescribed for depression and to speak with her psychiatrist. Query – drug-seeking behaviour.
This mental health admission takes place just over 10 months after the undefended final orders were made. It is a mental health admission that is not disclosed in the Mother’s affidavit of 5 May 2016, despite the fact that it occurred six months before she swore her affidavit. In that affidavit and under the heading “My Mental Health” at paragraphs 10-19, the Mother sets out some matters of history pertaining to her mental illness. At paragraph 16, for example, she refers to an attendance on a psychiatrist at (omitted) Hospital where she was admitted for four weeks. She says, at paragraph 17, she left the hospital in or around early 2013. There is no reference, surprisingly, to the mental health admission referred to in the above discharge summary.
The document in question suggests the admission was to (omitted) Hospital, not (omitted) Hospital. The Court has considered the possibility that the Mother has made a mistake in her affidavit in that the 2013 admission she deposes to was in fact a 2015 admission. That is unlikely, however, given that her affidavit is sworn about six months after the admission. Of concern is the Mother’s sworn statement at paragraph 19 which says:
For the past two years I’ve been coping much better with my illness. I no longer attend the (omitted) Mental Health Centre and I no longer rely on alcohol to cope. I continue to take 60 mg of Arapax in the morning, and then take 2.5mg of Zaprexa at night time. About one year ago, Dr M said words to the effect, “You are doing okay, I’m going to close your file.” And my case worker stopped visiting me at home. I had not needed to see Dr M since.”
The Mother’s statement was clearly intended to reassure the Court about her mental health. The failure to refer to the mental health admission in 2015 is of concern. Perhaps of greater concern is the reference in the discharge summary to the Mother’s request for Endone, a well-known potent painkiller, to assist with depression and the Mother’s recorded agitated response when the medical team advised her it was inappropriate. They specifically raised the Mother’s “drug-seeking behaviour” - a matter which will be discussed below.
There are other disconcerting aspects about the Mother’s purported reassuring evidence in her affidavit of 5 May 2016 when compared to other matters contained in the discharge summary of 21 December 2015. Her statement: “I no longer rely on alcohol to cope” is at odds with other entries in the discharge summary. For example, there is reference to a phone call received from the Mother on 15 December 2015 with a note being “intoxicated and expressing suicidal ideation.” On 17 December 2015, another phone call is noted: “Intoxicated and expressing suicidal ideation with plan to overdose on her medication. Ambulance were called.” What is clear is that in December 2015, about six months before the Mother swore her affidavit of 5 May 2016, she was continuing to struggle with alcohol and clearly experienced serious mental health issues. The way in which the affidavit is framed is, with great respect, clearly misleading.
The Mother’s affidavit of 19 January 2017 also deals with relevant issues under the heading “My current health and circumstances”, at paragraphs 6 – 10. Again, there is no reference to her admission in December 2015. This is disconcerting. By the time the Mother caused her January 2017 affidavit to be filed, she was clearly on notice that the Court’s concern was about her mental health and of problematic alcohol abuse.
Doing the best the Court can, there appears to be no reference by the Mother to this admission in the report provided by her psychologist, Mr I.
Documents are produced by the Proper Officer, Medicare. Mr R, the solicitor for the Father, submitted that these business records suggested that the Mother was “doctor shopping”. The Court agrees. A very strong impression is formed from these documents that the Mother has, in fact, been doctor shopping. One of the records demonstrates that in the period 1 January 2016 to 7 July 2017, the Mother consulted seventeen different doctors, at seven different geographical locations.
Perhaps the most disconcerting document in this record is that entitled “PBS Patient Summary”, again, for the period 1 January 2016 to 7 July 2017. In this period, the Mother received a total of 469 scripts (including repeats) for a total quantity of 5955 items – individual items of medication. There are a number of disturbing trends apparent from a study of the schedule produced which itemises the medication prescribed, as well as the quantity. For example, the discharge summary from December 2015 referred to above refers to the Mother’s desire to use Endone. The schedule refers to prescriptions for oxycodone. The Court knows from its own experience in many previous cases that oxycodone, often known as OxyContin, is very similar to Endone and is a powerful painkiller. Despite the advice that the Mother was given on discharge in December 2015, on 2 January, 9 January and 19 January 2016, the Mother was prescribed oxycodone by the same doctor in a total quantity of 35 tablets. In February 2016, the same doctor prescribed 30 oxycodone tablets. In March, the same doctor prescribed 20 tablets. A reasonable inference to draw is that the Mother did not tell the doctor who prescribed oxycodone what her psychiatrist told her on discharge from hospital in December at 2015. This is significant, because it casts doubt on the assertion by Mr I, the Mother’s psychologist, at 4.2.5 of his report that he “found Ms Kingsley to be a direct individual with no inherent need to mislead medical professionals about her wellbeing and psychological state.” As has already been noted, despite Mr I’s confidence in the Mother, she did not tell him about a December 2015 mental health admission, during which concerns were raised about her use of Endone. The Mother’s use of oxycodone continued in February, March 2017 and May 2017 though in moderate quantities.
The December 2015 discharge summary raises the issue of the Mother’s drug-seeking behaviour. The schedule produced by Medicare raises concerns about that. For example, the record suggests that in January, February and March 2017, the Mother’s monthly prescription of diazepam, which the Court knows from its experience to be a sedative, was about 50 tablets a month. The same doctor prescribed diazepam in those months. In March 2017, however, the Mother is prescribed a further 50 tablets by a new doctor, three tablets by another doctor and then returns to her original prescribing doctor just a few days later for a further 20 tablets. This means, therefore, that in March 2017, the Mother was prescribed a total of 73 diazepam tablets.
In January 2017, the Mother was also taking a drug called olanzapine. She was supplied 28 tablets on 9 January 2017, a further 28 tablets on 27 January, a further 28 tablets on 8 February, and then a further 28 tablets on 21 February. On 7 March 2017, a further 28 tablets, and again 24 March 2017, the same quantity. The Court cannot rule out the possibility, on the facts of this case, that these drugs are related.
The record in question ends in June 2017. In that month, the record indicates that the mother was supplied with a total of 40 diazepam tablets, 56 olanzapine tablets, 90 paroxetine tablets, 60 ziprasidone tablets, and 60 topiramate tablets. That is a large amount of medication. One would expect, in the circumstances of a case such as the present one, where the focus is so acutely on the Mother’s mental health, that she would provide some disclosure in relation to the medication that she takes, as well as the quantities thereof. She does not disclose it to Mr I. She refers to Topamax, a drug to reduce alcohol cravings in her January 2017 affidavit. What the Court now knows about the Mother’s medication in January 2017 is that she was supplied with 56 olanzapine tablets, 60 topiramate (presumably the Topamax she refers to), 60 ziprasidone, 60 paroxetine, and 50 diazepam. In the Mother’s May 2016 affidavit, she discloses at paragraph 19 that she takes 60mg of Arapax in the morning, and 2.5mg of Zaprexa at night. Well, she thus discloses two medications but the PBS Patient Summary from May 2016 indicates that the Mother was receiving three medications; diazepam, paroxetine and olanzapine. Moreover, in both April and June, she had filled scripts for ziprasidone.
Clearly, there is a continuing issue about the Mother’s disclosure to the Court about what, precisely, she is taking and for what purpose.
Documents Produced by (omitted) Medical Practice
The Mother’s treating GP appears to be Dr J. His name appears most frequently on the Medicare records. Mr R, for the Father, pointed the Court to the records suggest that in addition to all the other medications that the Mother was on, that she had been self-medicating with a substance called ketamine. For example, Dr J records on 11 October 2016 the Mother telling him words to the effect: “has been getting ketamine nasal spray online from UK”. On 9 November 2016, Dr J notes: “already on a lot of medication”. On 29 December 2016, Dr J records: “was admitted to (omitted)”. It is unclear what this means, and the Mother does not disclose this in her affidavit. In the same record, Dr J notes: “withdrawing from drug she got online”. Presumably, this is the ketamine referred to in Dr J’s records. There is, of course, no reference to this in the Mother’s affidavit of January 2017. She does not disclose this to Mr I.
On 15 February 2017, Dr J records: “says Endone is only thing that alleviates depression. Declined.” Thus, in February 2017, it is clear that the Mother was still seeking Endone, purportedly to assist with depression.
On 8 March 2017, the Mother saw Dr S at the same practice. The record states: “asking for Valium - stern word re this – too early – will prescribe but not again for 25 days. Denies getting meds elsewhere but getting ketamine – sprays it up nose.”
On 21 March 2017, the Mother saw Dr P at the same practice. The record states: “ran out of Valium, has been taking three tablets a day … difficulty cutting back, although recognises issues with dependence and addiction. … needs to see only one GP for benzodiazepine prescription.”
When the records produced by (omitted) Medical Practice are cross-referenced to the BPS patient summary produced by Medicare, what becomes apparent is that the Mother’s denial about obtaining medication elsewhere was plainly false because in both February and March 2017 she had been seeing another doctor who prescribed her oxycodone.
The Mother saw Dr J on 24 May 2017, and he records: “has been using ketamine nasal spray, ordered from overseas, prepared by a pharmacy.” The Mother makes no disclosure about her ketamine use.
On 10 July 2017, the Mother sees Dr S at the practice. The record states: “..low mood ... keeps having thoughts about it being better to be dead … denies getting meds elsewhere ... phoned Dr H – totally unaware of her being in ketamine”. Thus, two months before the interim hearing and just a few weeks before the Mother saw Mr I, the Mother’s mental health issues included having thoughts about it being better to be dead, something she did not tell Mr I and obviously did not tell the Court.
Discussion about Evidence
Regrettably, the evidence produced on subpoena raises formidable issues for the Mother and grave concerns for the Court. The strong impression formed is that the Mother has been less than frank with the Court, with her treating doctors and probably with her own lawyers. She was certainly less than frank with Mr I, her psychologist. The weight that can be given to his report is, in the circumstances, negligible. The inherent limitations of psychometric testing become apparent in this case. The quality of a psychiatric or psychological assessment can only depend on the quality of the information provided and, regrettably in this case, the Mother was highly selective in what she told Mr I.
With the evidence now before the Court, it is, indeed, possible that Dr C might revisit some of his own recommendations in relation to the Mother given the downward trajectory in terms of her life issue.
The solicitor for the Mother was clearly surprised about the evidence that was being tendered to the Court. He was given the opportunity to obtain instructions from the Mother, just in case there was some obvious explanation that the Court should take in mind as it was reviewing the evidence and preparing these reasons for judgment. Having taken instructions from his client whilst at the bar table, two submissions were made on her behalf. The first was that the Medicare records may well refer to different doctors, but it is the same practice or medical centre. That is clearly incorrect, on any reading of the documents. The second submission was that the documents produced in subpoena are historical in nature, and that the Mother’s present consumption of medication is as she deposes. Moreover, the Mother instructed her solicitor that she had been prescribed ketamine. With great respect, this submission is clearly misplaced and wrong. On any analysis of the Mother’s evidence compared to the independent material before the Court, she has not disclosed the true extent of the medications she has been prescribed or the issues she continues to suffer from. There is no evidence whatsoever to suggest that the Mother was at any stage prescribed ketamine.
The Mother’s solicitor, no doubt on instructions, valiantly sought to, in effect, change the agenda so that the focus was on the Father’s conduct in not facilitating any relationship between the Mother and the children. With respect to the Mother and those representing her, that is hardly surprising under the circumstances. On any objective view of the material before the Court, the Mother has not addressed the issues that confronted her at the time of the previous hearing. She has not addressed the issues referred to by Dr C in the previous proceedings. Not only have the circumstances not changed such as to warrant a revisiting of what is in the best interests of the children, arguably the Mother’s circumstances have deteriorated such that the concerns that were present at the time the orders were made are, in fact, accentuated.
The unfortunate reality is that the mother’s very selective disclosure to the Court, her seeming ongoing struggle with mental health issues and use and possible abuse of prescribed and non-prescribed medication, leads inevitably to a conclusion that it cannot be in the best interest of these children, at least for the time being, to revisit the question of what is in their best interests. That is not to say that the situation for the Mother is impossible or irrecoverable. It is just that she has a lot of work to do in getting her life together. There are obvious benefits to these children having a meaningful relationship with their mother, a relationship that does not exist for the time being. Until she can deal with the various life issues that are discussed in these reasons for judgment, this Court concludes that the risk to the children is greater than any benefit to them. The Court understands that the Mother’s proposal is to be reintroduced to the children through supervision. But where would that go in the medium or long term, unless the Mother addresses the serious issues that she must confront in her life? What is the point in exposing the children to the emotional trauma inherent in the reintroduction into their lives of their mother if she cannot so address the issues in her life that there is a prospect for a longer-term relationship with the children which moves beyond supervision?
The Mother’s application is dismissed. Her reliance on r.16.05 does not displace in a parenting case the obligation on a Court to make an order in the best interests of the children. In any event, the Mother has not demonstrated that she has a reasonable prospect of success in her application.
The Court urges the Mother to meaningfully commit herself to addressing the serious issues that she confronts in her life so that, in the fullness of time, she can work towards a restoration of the relationship she once had with these children.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 13 October 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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Procedural Fairness
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