Rathburne & Barnaby
[2021] FCCA 1338
•17 June 2021
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
These proceedings relate to the parties children X who is 16 years of age and Y who is 10 years of age.
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.
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.
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.
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
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 born in 1984 and she is 37 years of age.
(c)Both parents are Indigenous Australians.
(d)The parties were in a relationship between approximately 2000 and the middle of 2010; albeit there were periods of time that they lived separately and apart.
(e)There are two children born of the relationship, X (hereinafter referred to as “X”) who was born in 2004 and Y (hereinafter referred to as “Y”) who was born in 2010.
(f)At the time of final separation the mother was pregnant with the child Y.
There were previous parenting proceedings between the parties that were commenced by the father on 16 April 2014. So far as those proceedings are concerned:
(a)The proceedings were commenced by the father in circumstances where he pursued orders for the urgent recovery of the children.
(b)The father asserted that the children had been living with him from about August 2013 as a consequence of an incident of serious family violence between the mother and her partner at that time.[1]
[1] Affidavit of the Father filed 16 April 2014, [25-26].
(c)The mother retained the children after a period of time spending with them on or about 26 March 2014.
(d)The father made allegations that the mother had encountered difficulties since their final separation including but not limited to “violent relationships”, struggling with depression and an inability to look after herself let alone the children.[2]
(e)The father made complaints about the mother’s ability to facilitate the children’s school attendance.
(f)The mother was represented by two different solicitors during the litigation, however it appears each of those solicitors withdrew (the first on 19 August 2014 and the second on 11 November 2014) and she was unrepresented when the proceedings were finalised.
(g)It appears that when the proceedings commenced, the mother was residing in a women’s shelter.
(h)The mother only ever filed one affidavit in those proceedings, in which she denied any alcohol abuse and/or illicit drug use.[3]
(i)Orders were made by consent at the first substantive hearing on 6 May 2014, providing for the children to remain living with the mother, and otherwise spend alternate weekends with the father, together with additional touch base time each Wednesday after school.
(j)Those orders were effectively continued by consent on 15 September 2014.
(k)The mother was unrepresented and did not attend a hearing on 16 December 2014, and orders were made that day alerting the mother to the possibility that the proceedings might be finalised in her absence if she did not appear at the adjourned hearing scheduled for 19 January 2015.
(l)The mother was unrepresented and did not attend the hearing on 19 January 2015, and the court proceeded to finalise the proceedings in her absence.
(m)The mother was however given liberty to reinstate the proceedings within thirty-five days.
[2] Affidavit of the Father filed 16 April 2014, [49].
[3] Affidavit of the Mother filed 19 June 2014, [23].
For reasons that are not entirely clear to me, a Notice of Address for service was filed on behalf of the mother on 11 July 2018 by the Aboriginal Legal Rights Movement. This occurred at a time when there were not any live applications before the court. I can only opine that this occurred as the mother was endeavouring to obtain legal advice, and the solicitors she instructed filed the Notice of Address for Service in order to inspect the court file. However, I am only speculating in that regard, as the mother did not make any reference to receiving any legal advice prior to the commencement of the current proceedings or to the Notice of Address for Service that was filed on her behalf when she filed her initial affidavit in the current proceedings on 31 July 2020. For present purposes however, I am not certain that anything of significance turns on these matters.
THE CURRENT CIRCUMSTANCES OF THE PARTIES
When the mother commenced the current proceedings, she deposed in her affidavit filed 31 July 2020 that:
(a)She was not aware of the hearing date on 19 January 2015.[4]
(b)She experienced a “mental health manic episode” in March 2019 and was detained in the B Hospital for 8 days.[5]
(c)She was diagnosed with bi-polar disorder following the March 2019 hospital admission.[6]
(d)She had been attending upon a psychologist since her discharge from hospital in March 2019.[7]
(e)She was at that stage prescribed and taking “Lithium a mood stabiliser”, and “Quatizapine”.[8]
(f)She was living in the home of the maternal grandmother and step-grandfather with no immediate plans to live elsewhere.
(g)She was not working.
(h)She was not consuming illicit substances, but she admitted to consuming marijuana in the “past”.[9]
[4] Affidavit of the Mother filed 31 July 2020, [11].
[5] Ibid, [52].
[6] Ibid, [54].
[7] Ibid, [55].
[8] Ibid, [56].
[9] Ibid, [58].
The father’s present circumstances are such that:
(a)He lives in rental accommodation and the children each have their own room.
(b)He has partnered, although he does not live with his current partner all the time.
(c)There are two children from the father’s current relationship; C, born in 2016 and D, born in 2019; who live between the father’s home and their mother’s home.
The parents agree that since the making of the final order in January 2015, the children have remained living with the father and have spent time with the mother in accordance with those orders; albeit that there appears to be agreement that the father has not always facilitated the mother’s time. The father asserts that he has not always facilitated the children spending time with the mother as a consequence of his concerns over the mother’s mental health.[10]
[10] Affidavit of the Father filed 15 January 2021, [30].
From the outset of the current litigation, the father has raised significant concerns about the mother’s mental health and the impact of the same upon her ability to parent the children. The father identifies that he considered that the mother living with the maternal grandmother was a protective factor.[11]
[11] Ibid, [57].
THE LEGAL FRAMEWORK
Where there is a previous parenting order disposing of parenting proceedings, it is open to the respondent of any new application that is made to vary those arrangements, to oppose the court entertaining the further parenting litigation.
The principal which is applied in these circumstances has come to be known as the “rule” in Rice v Asplund and was enunciated by Evatt J in that decision at [78,905] as follows:
“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 …”
The Full Court considered the application of those principles in Marsden & Winch (2009) 42 Fam LR 1 at [50] and commented:
“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.”
In addition, the Full Court has identified in SPS & PLS [2008] FamCAFC 16 that:
•“The rule in Rice & Asplund is simply a manifestation of the best interest principles;”[12] and
•“The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them”.[13]
[12] Ibid, [48].
[13] Ibid, [84].
THE MOTHER’S POSITION
The mother’s position is that there are circumstances which warrant the court revisiting the parenting arrangements for these children.
In her affidavit filed on 31 July 2020 the mother identified the six reasons grounding her application as:
(a)That she was not present at, nor aware of the hearing at which the final orders were made.
(b)The children are said to have expressed clear wishes to the mother that they wish to increase their time spending with her.
(c)There were concerns as to the level of care and method of parenting that the father was providing for the children.
(d)The father does not always comply with the final orders and fails to facilitate the time spending with the mother.
(e)That she was concerned that the father was planning on relocating to the Northern Territory with the children.
(f)That she held concerns about the children’s mental health.
During the hearing, the mother’s counsel identified that the basis for the mother advancing that there has been a change of circumstances sufficient to warrant a re-opening of the parenting proceedings as:
(a)That the mother was not present at the hearing when the Final Order was made.
(b)That there had been 6 years since the final orders had been made.
(c)That the mother’s mental health no longer presents as a problem so far as her parenting capacity is concerned.
To the mother’s credit, she acknowledged through her Counsel that there was no real utility in pursuing a variation of the orders relating to the child X, given his age.
The mother however argued that circumstances are quite different where the child Y is concerned, and her position is that she be permitted to re-agitate parenting proceedings in relation to Y.
The Orders that the mother pursues in relation to Y if she is permitted to re-litigate are:
(a)That the parents share parental responsibility;
(b)That Y continue to live with the father;
(c)That Y spend time with the mother:
(i)Each alternate weekend from the conclusion of school Friday until 4.30pm Tuesday;
(ii)In the intervening week from 8.30am Monday until 4.30pm Tuesday;
(iii)For the first week of the short school holidays;
(iv)Each alternate week in the Christmas school holidays; and
(v)For defined times on special occasions including Christmas, Mother’s Day and the children’s birthdays.
(d)That Y communicate with the mother each evening when he is not spending time with her.
(e)That handovers occur at Y’s school or the father’s home.
(f)That there be injunctions restraining the father from moving the children’s principal place of residence and consuming illicit substances 24 hours prior to or during any time that the children and in his care.
(g)That the parents communicate by SMS except in the case of an emergency.
(h)That the parents be at liberty to receive all school correspondence that parents usually receive.
(i)That the parents be at liberty to attend all school and extra-curricular and sporting events for the children.
(j)That in the event of a medical emergency the parent with the care of the children notify the other as soon as is reasonably practicable.
(k)That the father keep the mother informed of the names, addresses and contact details of the children’s medical professionals and authorise the mother being permitted to communicate with them.
(l)That the parents keep each other informed of their contact telephone number and residential address.
THE FATHER’S POSITION
The Father’s position is that none of the grounds advanced by the mother are sufficient to satisfy the court that there has been a change of circumstances warranting a fresh round of parenting proceedings.
Moreover, it is the father’s position that the mother’s mental health and illicit drug use still present as risk factors for the children, and that the mother has not been entirely forthcoming about her circumstances in that regard.
The father additionally makes it clear to the court that he has no intention to relocate the children.
HAS THERE BEEN A CHANGE OF CIRCUMSTANCES
From the outset I comment that at the time that the mother commenced these proceedings on 31 July 2020, it seems plain on the face of the affidavit that she filed, that limited information was provided to the court. The affidavit that the mother filed in support of her application is a brief eight pages (acknowledging that there is 10 page limit prescribed by Practice Direction No. 2 of 2017, but that no leave was sought by her to file a more expansive affidavit). More importantly, that affidavit:
(a)Provides no explanation or context as to why the mother stopped participating in the earlier proceedings; and
(b)Provides no real particularity, specificity or context to various allegations made by the mother to ground her application.
Turning specifically to those matters that the mother advances to form the foundation of her application.
The mother’s failure to attend the hearing on 19 January 2015
In and of itself, the mother’s failure to attend the hearing on 19 January 2015 does not qualify as a significant change of circumstances. From my perspective, this is an agreed fact that does nothing more than ground the factual matrix for the current litigation.
It is also not lost on me that while the mother may not have known of the date of the hearing at which the final order was made, there can be no doubt that she was aware that proceedings were before the court, given her previous engagement in the proceedings; illustrated by the fact that she filed documents in the proceedings and her legal representation.
Despite this, there has also been no explanation proffered by the mother (other than for the period from 2019) as to the significant delays between the making of the final order in January 2015 and when she ultimately commenced these proceedings in July 2020; which is surprising given the mother was given leave to reinstate the proceedings within 35 days of the making of the final order.
I do not know for example:
(a)If, nor when, the mother was provided with a copy of the Order made 16 December 2014 listing the hearing on 19 January 2015, and warning the mother that the matter might be resolved in her absence if she failed to attend.
(b)When the mother was provided with a copy of the Final Order made 19 January 2015.
For all of these reasons, without more information, I do not consider that this is a satisfactory basis to bypass the rule in Rice v Asplund.
The children’s alleged desire to spend additional time with the mother
When the mother commenced these proceedings she deposed in broad and vague terms that:
(a)The children “wish to spend more time with me”.[14]
(b)The “children tell me that they want to live with me.”[15]
(c)The “children beg me to spend “one more night” on the Sunday evening.”[16]
(d)The “children tell me that if they request more time with me the father questions them as to why and gets very angry and upset with them.”[17]
[14] Affidavit of the Mother filed 31 July 2020, [39].
[15] Ibid, [41].
[16] Ibid, [42].
[17] Ibid, [43].
As can be illustrated by the exact terms used by the mother, these allegations are made in generalised sweeping statements with no particularisation as to exactly what was said by each/or both children, nor when the statements were made and nor the context in which certain events occurred.
Unfortunately when assertions are made in this way, the effect is such that without context and specificity it is difficult to accept even at a prima facie level firstly whether any statements were actually made by the children, and secondly whether the interpretation of events is capable of being interpreted in the way that the mother asserts.
Without more specificity, in my view these broad assertions are not capable of grounding an argument that there has been a change of circumstances. If that were to be the case, it is likely that the “rule” in Rice v Asplund would have limited application, and it would not ever achieve its desired purpose of preventing endless litigation between warring parents.
The mother’s concerns as to the level of care provided by the father
The mother again fails to adequately particularise her assertions that the father is not providing adequate care for the children.
Those assertions include:
(a)That the children “often complain to me that they are harshly disciplined in the father’s care.”[18]
(b)That as a form of punishment one night the father made the child X run 5kms every night after school.[19]
(c)That the father “makes” the child X “write statements about Muhammad Ali and Nelson Mandela and that the father forces him to submit to daily workouts that he does not want to do.”[20]
(d)That the children “complain about having to perform their own washing and daily dishes”.[21]
(e)That the children have complained to the mother that there is a lot of “smoke” in the father’s laundry and that the father smokes out of a bottle and/or a “long glass thing with a bubble at the end”.[22]
(f)That there is a continued problem with “cockroaches and hygiene” at the father’s home.[23]
(g)That the father’s home is “filthy and his yard is littered with junk”, and that X’s bed does not have any sheets.[24]
(h)That the father is consumed playing video games.[25]
[18] Ibid, [30].
[19] Ibid, [31].
[20] Ibid, [32].
[21] Ibid, [33].
[22] Ibid, [34].
[23] Ibid, [35].
[24] Ibid, [36-37].
[25] Ibid, [38].
In this instance, even if I were to accept the allegations made by the mother, the majority of the allegations made by the mother amount to no more than a clash of parenting styles. Again without more I do not consider this to be a sufficient basis to ground an argument that there has been a change of circumstances.
While I accept that the allegations as to the father’s illicit drug use, and the poor state of his home are in a different category to the balance of the allegations that have been made by the mother (noting as I do that the allegations are denied by the father), again without more, I do not consider that they are capable at this juncture of grounding an argument that there has been a change of circumstances.
The father’s alleged failure to comply with the final order
There is no dispute between the parents that there has been times that the father has not complied with the terms of the final order in relation to the mother’s time spending.
The father asserts that he has not always complied with the final orders for short periods of time due to “concerns about the mother’s mental health, sometimes insisting the maternal grandmother be present.”[26]
[26] Affidavit of the Father filed 15 January 2021, [30].
In addition the father has deposed to allowing the children to spend time with the mother beyond the time provided for in the final orders, including offering additional periods of time spending. Significantly the father has agreed to increase the alternate weekend regime from approximately the start of 2020 such that the mother’s time with the children now concludes at the commencement of school on a Monday morning as against the 5pm on a Sunday provided for in the final order.[27]
[27] Ibid, [27].
While the mother complains about the father’s failure to abide by the terms of the final order, I am mindful that the mother has not ever filed a contravention application in these proceedings. That suggests to me that for whatever reason, prior to the issuing of these proceedings the mother did not consider the problem to be such that it warranted further litigation or that the father be dealt with for non-compliance with the court order. While not an inference that I intended to draw, it might also be inferred that the mother considered these variations to have been appropriate, for example if the father withheld time spending during the 8 day period the mother was hospitalised as a consequence of a mental health episode in March 2019.
In all of the circumstances, and for the additional reasons that I set out below when discussing the mother’s mental health, I do not consider that there is any merit in this ground. To the contrary, it appears to me that the father has acted appropriately in agreeing to an increase to the mother’s time spending while also appropriately limiting the mother’s time spending and/or imposing conditions on it to ensure the children’s safety from time to time.
The fathers alleged plan to relocate the children
There is no merit in this allegation as a basis for the mother to ground her application that there has been a change of circumstances.
This is because the father deposes that not only is he not presently planning to relocate to Darwin, but also that he understands that he could not move the children without the mother’s consent.[28]
[28] Ibid, [53].
The children’s mental health
In her affidavit filed 31 July 2020 the mother deposed that she was “gravely concerned about X’s mental health presently.”[29]
[29] Affidavit of the Mother filed 31 July 2020, [45].
The mother went on to depose that she had attempted to raise her concerns over a coffee with the father, but that he was dismissive of her concerns.
From the father’s perspective he attempts to put the mother’s generalised assertions into some context. Specifically, that there was a period of time in 2020 that X was “down” as his girlfriend had attempted suicide. The father deposes that he encouraged X to talk to the mother about how he was feeling so that he could “rely on her for support”. The father also deposes that X has been seeing the school counsellor and that while arrangements were made for a Mental Health Care Plan, X himself is content with seeing the school counsellor at this stage.[30]
[30] Affidavit of the Father filed 15 January 2021, [50-53].
These contextual explanations deposed to on the father’s part are not ones that the mother has ever cavilled against. I would have to infer in those circumstances that the mother accepts the father’s explanation in that regard. If that is the case, then it appears to me that the father behaved appropriately in the circumstances across 2020 in dealing with X’s concerns and difficulties flowing from the suicide attempt of his girlfriend.
In any event in circumstances where the mother has acknowledged through her counsel that there is little utility in pressing for any change to X’s arrangements, it is difficult to see how this topic assists in establishing a sufficient change of circumstances when considering Y’s arrangements; particularly as the mother makes no complaint as to Y’s mental health, let alone the father’s ability to deal with the same.
The passage of time since the making of the final order
In the same way that I do not consider the mother’s absence from the hearing on 19 January 2015 to be a basis to reconsider the parenting arrangements, I do not consider that on its own the passage of time since the making of the final order is sufficient to suggest that there has been a change of circumstances. Again, if that were to be the case then there would be no purpose to the rule in Rice v Asplund.
The improvements in the mother’s mental health
Of all the grounds articulated by the mother, it appears to me that this is the ground that has the potential to meet the threshold for a change of circumstances. Accordingly it is a ground which requires closer consideration. Unsurprisingly, it was also the ground about which Counsel for each of the parties focused their submissions during the hearing.
As I set out earlier in these reasons, beyond acknowledging her difficulties and subsequent bi-polar diagnosis in 2019, the mother did not go into any significant detail about her mental health when she commenced these proceedings.
I would have to assume however, that the mother and/or her legal representatives identified that more information needed to be put before the court to establish this ground, because the mother ultimately filed two further affidavit’s in these proceedings dealing with the topic of her mental health.
The first additional affidavit was filed on 19 February 2021 and has annexed to it various documents including the Separation Summary following the mother’s hospital admission in April 2019, together with various additional medical records.
The second affidavit was filed on 29 March 2021 and has annexed to it a report prepared by Dr E dated 19 March 2021. Dr E appears to have undertaken an independent psychiatric review of the mother.
Dealing with Dr E’s assessment and report first, I note that Dr E ultimately formed the view:
(a)That the mother “is suffering from a bipolar affective disorder and a post-traumatic stress disorder and a cannabis use disorder. The BPAD is well controlled and the PTSD is mild”;[31] and
(b)That the mother “has some unhelpful personality traits” which can be “understood in the context of her developmental history”.[32]
[31] Report of Dr E dated 19 March 2021, [25.1].
[32] Ibid.
In coming to that view, Dr E however commented that he held concerns about the mother’s “ability to accurately recall and report her history” as a consequence of conflicting information in the materials he had been provided and the mother’s self-report to him.[33]
[33] Ibid.
The mother’s position is that the court can have confidence that her mental health is well attended to and under control as a consequence of a combination of the mother now having the benefit of a diagnosis for her mental health condition, coupled with the information gleaned from the medical notes annexed to her affidavit filed 19 February 2021 and the opinion of Dr E that her BPAD diagnosis is “well controlled”.
The father’s position however is that the foundation of Dr E’s opinions are fundamentally flawed. In addition, it is the father’s position that the medical records produced by the mother in her affidavit filed 19 February 2021, do not lead to a conclusion that the mother has all of her presenting problems under control.
I acknowledge that at this stage I do not have the benefit of cross examination of Dr E.
Having said that however, the father’s Counsel went to some lengths in his submissions to highlight the difficulties with the mother’s self-report to Dr E; in doing so identifying the various conflicting version of events put forth by the mother.
Indeed Dr E himself acknowledges that the opinions expressed in his report may well be subject of review as he identifies that “It is not the role of a medical expert to decide for the court what the facts of a particular case may be and, as such even the history in this report should be considered assumptions of fact until the decision-maker/court accepts or rejects them”.[34]
[34] Ibid.
I will deal separately with each of the criticisms of the mother’s self-report to Dr E identified on behalf of the father which bear significance for present purposes.
The first criticism made by the father is that there is no current evidence before the court that the mother is compliant with taking her prescribed medication.
The mother has put evidence before the court in the form of her Patient Health Summary from her GP that her prescribed medication on 3 February 2021 was “Levothyroxine” (presumably for her diagnosed Hypothyroidism), “Lithium 250mg Tablet, 2 tablets twice a day”, “Ostelin Vitamin D 1000IU Gel Capsule 1 daily’, and “Quetiapine 300mg Tablet 2 Tablets”.[35]
[35] Affidavit of the Mother filed 19 February 2021, page 9.
I note that in all of the mother’s Psychiatry reviews that have been undertaken between 1 April 2020 and 3 September 2020, on each and every occasion the mother is recorded as being compliant in taking her prescribed medication.
The father’s criticism however is that these records only take the issue up to 3 September 2020, and not to the current date.
I am aware that the mother deposes that she is compliant with taking her prescribed medication. While a good indicator of the present may be what has occurred in the past, I am not entirely sure that I can take that approach at this stage. This is because I have some concern about the mother’s candour with the court in light of certain observations that I make later in these reasons. I accordingly do not think that I can take this issue any further in the absence of up to date medical records.
The second criticism made by the father is that Dr E had no evidence before him about the mother taking any steps to address concomitant concerns about her illicit drug use and in particular her cannabis use as identified in the medical records.
In making this criticism the father drew particular attention to the records from the Suburb H Hospital dated 3 September 2020, and the concomitant concerns raised in that record about the mother’s illicit drug use and the impact that it has on her mental health, and in that regard:
(a)It is recorded that there are:
“no immediate risk concerns, however chronic enduring risk with impulsivity, misadventure and unpredictability given underlying vulnerabilities and ongoing illicit substance use. Optimistically, Ms Rathburne has good supports from her family and appears to be willing to engage with MHS to work towards her goal”.[36]
(b)The reference in that quoted passage to “ongoing illicit substance use” has its genesis in the same record setting out that the mother self-reported her cannabis use at that stage as being that she:
“smokes 4 cones of THC per day. Stated that she had an appointment with Region F Mental Health later today with Ms G to discuss reducing her THC use. Acknowledged that this would be helpful in gaining more custody of her children (reported that her ex-partner smokes THC in front of her children) and provided encouragement for Ms Rathburne to cease THC use altogether”.[37]
(c)The same record also sets out that the “Plan” for the mother was for there to be “drug and alcohol counselling regarding cessation of THC”.[38]
[36] Ibid, page 50 – 51.
[37] Ibid.
[38] Ibid.
The father asserts however that there is no evidence put before the court by the mother that she has done anything to take up the recommendation made in September 2020 that she “cease THC use altogether” and/or that she has indeed done so, and/or that to assist her in doing so she has undertaken any drug and alcohol counselling.
This is a submission that has some force taking into account that it would appear that the mother has been less than honest about her marijuana use in her documents filed in these proceedings; noting as I do that a mere two months prior to her 3 September 2020 attendance on the Region H Hospital, the mother specifically deposed on 31 July 2020 that she did not “consume illicit substances”, albeit that she admitted that she had in the “past” “consumed marijuana”.[39]
[39] Affidavit of the Mother filed 31 July 2020, [58].
The submission also has some force as there is nothing in the mother’s affidavit filed on 31 July 2020, nor in any affidavit material since filed, which identifies that she has engaged with any drug and alcohol counselling service. To the contrary, when the mother attended upon Dr E in March 2021 he identified that she had told him that “she previously smoked 20 cones of cannabis per day. She subsequently reduced this, but was still using cannabis daily”[40] and that “she is trying to stop using marijuana and she last had it 3 weeks ago.”[41]
[40] Report of Dr E dated 19 March 2021, [16].
[41] Report of Dr E dated 19 March 2021, [8].
I also note that recommendations about the mother receiving treatment to assist her in dealing with her cannabis use was something raised with her prior to her attendance at Region H Hospital on 3 September 2020, and in particular:
(a)On 1 April 2020 in her psychiatry review with Dr J he recorded:
“I discussed with Ms Rathburne regarding the option of being linked up to DASSA to which she is not keen at the moment. Ms Rathburne has previously been followed up with DASSA, had been on Methadone for abusing Neurofen(sic) for years. Self-ceased Methadone subsequently as she did not like the way it made her feel”.[42]
(b)On 21 May 2020 in her psychiatry review with Dr J he again recorded:
“Explained to Ms Rathburne regarding the long term harms of using THC, increase of relapse, misadventure and impulsivity. Ms Rathburne was encouraged to cease THC use and engage with DASSA – amenable to taper and cease THC use but not keen to be linked up with DASSA.”[43]
[42] Affidavit of the Mother filed 19 February 2021, page 38.
[43] Ibid, page 42.
The significance of the mother’s failure to undertake any form of drug and alcohol counselling takes on greater prominence, as the father properly identifies, when considered against the backdrop that these concerns have been longstanding in relation to the mother. In particular, Counsel for the father drew the court’s attention to the topic of the mother’s illicit drug use and recommendations that she receive treatment being a feature of the concerns that he raised in the previous proceedings.[44] Additionally I note that this was also a topic of concern recorded in the hospital notes from the mother’s admission in 2019 which ultimately led to her BPAD diagnosis.[45]
[44] Affidavit of the Father filed 8 August 2014, [14.1.1, 15.2, 19.2 and 29].
[45] Affidavit of the Mother filed 19 February 2021, page 5.
This leads into the third criticism raised by the father that the mother failed to disclose the extent of her psychiatric history and her illicit and prescription drug abuse both to the court and to Dr E.
When the mother commenced these proceedings the extent of her admissions about her previous mental health issues were limited to the mental health episode that she suffered in 2019 which ultimately led to her BPAD diagnosis. The mother’s Affidavit filed 31 July 2021 informs the court as follows:
In or about March 2019 I experienced a mental health manic episode. On this occasion I was detained in the B Hospital for 8 days. In the lead up to this event I had just had some teeth removed at a dentist surgery while I was in the dentist chair. I was in incredible pain and I was sent home without any prescribed pain relief.
I recall that I was submitted for drug screen testing during this time and all results were negative to illicit substances. During this time, I did not spend time with the children for approximately 8 weeks at the father’s request as the father became aware of my hospital admission through a family member of his working at the hospital. The father alleged that I was consuming ICE however this is simply not true. This is the first and only time I have had any such mental health episode.
I have been diagnosed with bi polar disorder in 2019 following this hospital admission.[46]
[46] Affidavit of the Mother filed 31 July 2021, [53 – 54].
By the time Dr E prepared his report in March 2021, he recorded the mother’s past difficulties with reference to the documents that he had before him (which included the Affidavit filed by the mother on 19 February 2021 annexing the relevant medical records) to include: [47]
[47] Report of Dr E dated 19 March 2021, [8].
(a)Becoming addicted to analgesics in 2008;
(b)Starting to feel depressed an anxious in 2010;
(c)Treatment for a codeine addiction in about 2011;
(d)Having previously taken Suboxone and being on the methadone program;
(e)Having at some point used 20 cones of cannabis per day, without being able to recall when this was;
(f)Suggesting that at that same time she spent $75 per fortnight on cannabis;
(g)A June 2018 hospital admission when she had threatened to “stab herself with a knife”, after an alleged assault by the father; and
(h)Her April 2019 hospital admission, where it was recorded that she was using “4 bongs of cannabis per day”, having previously used “20 cones of cannabis per day”.
Whereas when the mother attended upon Dr E, he recorded that she reported to him that:[48]
(a)She denied any past psychiatric history;
(b)She had not seen a psychiatrist or a psychologist prior to “what I have described above” (it being unclear what specifically Dr E is referring to in that regard).
[48] Ibid, [15].
When reconciling what the mother deposed to in her affidavit filed on 31 July 2020 and what she is recorded to have told Dr E about her previous psychiatric history, with the medical records that she also provided to the court in her Affidavit filed 19 February 2021, it appears however that the mother’s sworn evidence before the court and her self-report to Dr E significantly downplay and/or omit portions of her previous history, and in particular:
(a)The mother makes no mention whatsoever in her affidavit filed 31 July 2020 nor in what Dr E records she reported to him about her psychiatric history prior to her BPAD diagnosis in 2019, and in particular a hospital admission in 2018 which is recorded in the medical notes in the following terms:
“First presentation to mental health services in June 2018
13/6/18-18/6/18 Ward 1G PICU, MHS
Situational crisis; acute stress reaction.
BIB SAAS following threats to stab herself with a knife in the context of being assaulted several days prior and reduced access with her children. Code blacks, required IM sedation in ED. Collateral indicated 9 days prior, had change in behaviour, becoming aggressive and verbally abusive with paranoid thoughts of people wanting to harm her, likely triggered by heavy THC use. Self-ceased antidepressant Fluvoxamine 10 days prior.
Discharge medications – Olanzapine 10mg nocte, Fluvoxamine 40mg mane.”[49]
[49] Affidavit of the Mother filed 19 February 2021, page 22-23.
(b)The mother is recorded as having a positive drug screen for THC when she was admitted to the B Hospital on 22 April 2019 and diagnosed with BPAD,[50] whereas as previously identified she deposed in her affidavit filed 31 July 2020 that she had been screened during this admission and that there had been no illicit substances in her system.
(c)Throughout her engagement with the Region F Mental Health Services across the period from May 2019 to December 2020, her National Outcomes and Casemix Collection Assessments repeatedly record mild, increasing to moderate “problems with alcohol / other drugs”.[51] The mother had not otherwise admitted this as an issue whatsoever in her affidavit filed 31 July 2020.
(d)The notes from the mother’s clinical reviews undertaken by mental health services among other things record:
(i)On 13 March 2020 that the mother reported there are no “family court orders” in relation to the children,[52] a statement which is demonstrably incorrect.
(ii)On 13 March 2020 that she uses “x4 bongs per day of THC – reports for over a year (would like to quit)”,[53] with the record going on to set out that the mother was “open to getting the number for DASSA/OARS for telephone counselling however believes she can do this alone”.[54]
(iii)That the mother has a past history of “suicide/self-harm threats preceding both previous hospital admissions and a history of homicidal ideation when unwell”,[55] matters she did not depose to in her affidavit filed 31 July 2020, nor did she report to Dr E whatsoever.
(iv)That on 20 July 2020 the mother is recorded as having reported that her THC use was “daily – has about 5 cones/day (down from 20 cones in the past), uses bong throughout the day”[56]. This is something that is also in a record dated 1 April 2020 from a Psychiatry review with Dr J[57] and in the record from 11 June 2020.[58] Whereas in her Psychiatry review with Dr J on 21 May 2020 the mother is recorded as having reported that her THC use was “about 3 cones per day”.[59] Either way, all of these admission by the mother to her treating professionals stand in stark to contrast to her affidavit filed relatively contemporaneously on 31 July 2020 where she denied any current illicit substance use.
[50] Affidavit of the Mother filed 19 February 2021, page 6.
[51] Ibid, Annexure “-3.”
[52] Affidavit of the Mother filed 19 February 2021, page 23 – 24.
[53] Ibid, page 25.
[54] Ibid.
[55] Ibid, page 24.
[56] Ibid, page 28.
[57] Ibid, page 38.
[58] Ibid, page 46.
[59] Ibid, page 42.
In light of all of these issues, I accept the submission made on behalf of the father that the mother has not been candid with the court, nor Dr E about the extent of her cannabis use and/or her mental health issues.
Where all of these criticisms ultimately lead is that I would have to have some doubt that the mother has all of her personal difficulties under control, and in particular her cannabis use. The difficulty that this creates for the mother is that because her cannabis use is described by her treating professionals as being something that puts her at “chronic enduring risk”, it is an unaddressed matter that is of deep concern.
While the mother is to be commended for engaging with mental health services and taking her prescribed medication (at least up to September 2020), I do not consider that in light of all of the issues that I have discussed that the steps that she has taken to deal with her mental health amount to me being satisfied that there has been a significant change of circumstances.
CONCLUSION
For all of the reasons that I have identified, I am not satisfied that there has been a significant change of circumstances to justify further parenting litigation between these parents.
If however I am wrong about that assessment, and in particular with regards to my assessment with regards to the mother’s mental health, I comment that I do not consider that it would not be in the children’s best interests for there to be further parenting litigation because:
(a)It appears that the parents have been able to mutually agree increased time spending between the mother and the children.
(b)I consider that the father appears to have acted appropriately protective of the children, and I have no reason to doubt that he would continue to do so.
(c)I would be concerned that as a consequence of the mother abandoning her application so far as the child X is concerned, that any change for the child Y would have the very real potential to result in him being separated from X.
In light of the evidence presently before the court, I do not consider that it is appropriate for the orders to be varied in the fashion promoted by the mother.
For all of these reasons, I make the orders that appear at the commencement of this judgment.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kari. Associate:
Dated: 17 June 2021
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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Jurisdiction
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Procedural Fairness
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Res Judicata
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Remedies
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