Rathburne & Barnaby

[2021] FCCA 1338

FEDERAL CIRCUIT COURT OF AUSTRALIA

Rathburne & Barnaby [2021] FCCA 1338   

File number(s):

ADC 1403 of 2014

Judgment of:

JUDGE KARI

Date of judgment:

17 June 2021

Catchwords:

FAMILY LAW – children – where final parenting orders were made in January 2015 in the absence of the mother – where mother asserts her mental health has improved - children are now aged 16 years and 10 years – consideration of the rule in Rice v Asplund – application dismissed

Cases cited:

Marsden & Winch (2009) 42 Fam LR 1

Rice v Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Number of paragraphs:

90

Date of last submission/s:

11 May 2021

Date of hearing:

11 May 2021

Place:

Adelaide

Counsel for the First Applicant:

Ms Pangallo

Solicitor for the First Applicant:

Pascale Legal Barristers & Solicitors

Counsel for the First Respondent:

Mr Anderson

Solicitor for the First Respondent:

Lee Kelly Legal

ORDERS

ADC 1403 of 2014

BETWEEN:

MS RATHBURNE

Applicant

AND:

MR BARNABY

Respondent

ORDER MADE BY:	JUDGE KARI
DATE OF ORDER:	17 JUNE 2021

THE COURT ORDERS THAT:

1.That the Initiating Application of the mother filed 31 July 2020 and the Response filed by the father on 15 January 2021 be dismissed.

2.That the proceedings otherwise be dismissed as finalised.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE KARI

INTRODUCTION

1. These proceedings relate to the parties children X who is 16 years of age and Y who is 10 years of age.

2. The proceedings were commenced by the mother in circumstances where she is asking the court to reconsider final orders made on 19 January 2015 in relation to the children’s parenting arrangements.

3. The mother’s application is bought against a backdrop of final orders being made in the absence of her attendance at a hearing on 19 January 2015. The mother through her counsel acknowledges that she had disengaged from the previous litigation.

4. The final orders that apply to the children essentially provide for:

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

   (b)The children to live with the father; and

   (c)The children to spend time with the mother each alternate weekend.

5. The father opposes the mother’s application to vary the final orders, and he invokes what is known as the “rule” in Rice v Asplund (1979) FLC 90-725 (hereinafter referred to as “Rice v Asplund”); namely that there has not been a sufficient change of circumstances to warrant the court revisiting the parenting arrangements for these children.

   BACKGROUND

6. The relevant circumstances by way of background summary are as follows:

   (a)The father was born in 1983 and he is soon to turn 38 years of age.

   (b)The mother was…