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Mother Opposes Father's Sole Parental Responsibility Over their Children

Rathburne & Barnaby [2021] FCCA 1338 (22 June 2021)

Mother opposes final parenting orders made in January 2015 in her absence.  She alleges that her mental health has improved and such change of circumstance should warrant the Court to revisit the final parenting order. 


The mother asks the court to reconsider the final orders made on 19 January 2015, a hearing she was absent to, in relation to parenting orders over her children X, aged 16 years and Y, aged 10 years.  The final orders provide that the father shall have sole parental responsibility for the children who were ordered to live with him and spend time with the mother each alternate weekend.  The father opposes the mother's application alleging that there has not been a sufficient change which warrants the court to revisit the previous parenting arrangements. 

The previous order was granted pursuant to the father's allegations regarding the mother's inability to facilitate the children's school attendance.  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.  On 19 January 2015, the mother was unrepresented and was unable to attend the hearing which finalized the proceedings in favor of the father.  The mother was given liberty to reinstate the proceedings within 35 days.  The mother commenced the current proceedings opposing the final orders alleging that her mental health has improved.


Whether or not there is a significant change of circumstances on the part of the mother.

Applicable law:

Rice v Asplund [1978] FamCAFC 128(1979) FLC 90-725 - provides that before a court entertains an application to reverse an earlier custody order, 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.
SPS & PLS [2008] FamCAFC 16 - the sufficiency putting of new events to provoke a new inquiry is determined through 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”.


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.

At the time that the mother commenced these proceedings on 31 July 2020, limited information was provided to the court.  No explanation or context as to why the mother stopped participating in the earlier proceedings; and no real particularity, specificity or context to various allegations was made by the mother to ground her application.

Despite the mother's engagement with mental health services and taking prescribed medication at least up to September 2020, there is still 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.


The mother’s failure to attend the hearing on 19 January 2015 and her alleged improved mental health does not qualify as a significant change of circumstances.  The Court ordered that the Initiating Application of the mother and the Response filed by the father be dismissed.  The proceedings otherwise are dismissed as finalized. 

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