MAGDEN & KADING

[2020] FCCA 1302

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAGDEN & KADING [2020] FCCA 1302

Catchwords:
FAMILY LAW – Parenting – final orders made 29 May 2018 – Rice & Asplund objection raised by the Mother – father agitating time with the children during the July 2020 school holidays – application by father for the removal of the Independent Children’s Lawyer – no material change in circumstances – application dismissed.

Cases cited:

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Applicant: MR MAGDEN

Respondent: MS KADING

File Number: DGC 3942 of 2016

Judgment of: Judge Burchardt

Hearing date: 20 May 2020

Date of Last Submission: 20 May 2020

Delivered at: Dandenong

Delivered on: 28 May 2020

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: Not applicable

Counsel for the Independent Children's Lawyer: Mr Taghdir

Solicitors for the Independent Children's Lawyer: Taft Lawyers

ORDERS

1. The Initiating Application filed on 12 December 2019 be dismissed.

2. All extant applications be otherwise dismissed and removed from the active pending cases list.

3. The Order for the appointment of the Independent Children’s Lawyer on 17 March 2020 be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3942 of 2016

MR MAGDEN

Applicant

And

MS KADING

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting orders application by the father filed on 11 December 2019.  Following an interlocutory discussion of the matters raised by the parties on 22 April 2020, I directed that the matter be set down for hearing on 20 May 2020 as an interim defended hearing.  The issues were restricted to, first, the Rice & Asplund (1979) FLC 90-725 (“Rice v Asplund”) objection raised by the mother and the Independent Children’s Lawyer, second, the father’s time with the children during the July 2020 school holidays, and, finally, the father’s application for the removal (erroneously referred to as “recusal” in the interim orders) of the Independent Children’s Lawyer.

2. For the reasons that follow, I propose to uphold the Rice & Asplund objection and dismiss the proceeding.  I do not propose to alter the extant orders relating to the July 2020 school holidays.  I will also, although on one view it is not strictly necessary, make some observations about the role of the independent children’s lawyer.

The Submissions of the Parties

The Submissions of the Father

1. Given the way that this matter has unfolded, it is appropriate to start with a paraphrase (taken from my notes, it is not, of course a transcript) of the parties’ submissions.

2. The father commenced his submissions by indicating that he understood the Rice & Asplund doctrine.  It was all about the best interests of the children.  He observed that there was a mental health plan for his son, X, in December 2019.  This had noted behavioural disorders on the child’s part.  It was submitted that there was a significant change in circumstances.  No psychologist had been appointed to examine X’s difficulties as required by the orders made in 2017.  The mother had not informed him about visits to various medical practitioners.  The child had undergone psychotherapy in February to March 2019 and has seen a child psychologist at school in December 2019 for one session.  Then in April 2020 he had seen another psychologist.  There is a query as to whether X had adjustment disorder.

3. The father referred to the mother’s ongoing hostility to him.  He noted that on 17 April 2020 the mother had made an assertion that X might have been sexually assaulted.  He submitted the mother was not complying with the order for equal shared parental responsibility.  The children need a change.  The family reports in 2017 took place when the children had not seen him for a year.  They still had a strong desire to see him.  Y is 12 and X is 10 and both want more time with the father.  There should be a child inclusive section 11F conference. 

4. Conflict between the parents makes the orders unworkable.  The mother refuses to negotiate holiday time.  The orders in respect of the term 1 and term 3 holidays were hard to comply with.  The mother refuses to renegotiate.  In April 2020 the children had to come to his work for one day during the holidays.  Since 2017 the mother has said that X is on the waiting list for psychological assessment, but there is no such list.

5. The father then dealt with the role of the Independent Children’s Lawyer, whom he asserted was biased in favour of the mother.  The Independent Children’s Lawyer wrote the orders in 2018.  Both he and his partner felt coerced on 29 May 2018.  The children’s best interests are paramount and the orders do not support a relationship with the father.  He seeks the orders set out in his application.  He also sought dispute resolution.

6. The issue of the time in school holidays and in the July holidays was an example of the mother’s hostility towards the father.  The mother insists there be no time during the holidays.  The children do not see him for an entire month each year.  The mother refuses to agree.  The children see him on 19, 20 and 21 June and they will not see him until 17, 18 and 19 July.  The mother’s email of 15 May 2020 asserted she wishes to go to Adelaide.  The children are said not to want to go to the father.  The father wishes to continue alternate weekend time in the July school holidays and to add two extra nights.

7. The father seeks that Mr Taghdir be removed as Independent Children’s Lawyer.  He was biased in 2017 and 2018.  Both he and his partner think there is bias.  On 7 April 2018, Mr Taghdir talked for 30 minutes to the wife’s lawyer even though there were other seats available in which he could have sat.  In April and May the mother had not applied for supervised visits.  The Independent Children’s Lawyer said it would cost $450 and the father said he had no option but to accept this.  The costs should have been equally split.  They actually cost $970.

8. In September 2018 Mr Taghdir spent more time with the other side’s barrister.  He was called away by the other lawyer and came back from lunch with her.  He was keen to socialise with the mother’s legal team.  The father complained that his complaints were not taken appropriately seriously by Mr Taghdir.

9. Holidays are the main area of disagreement.  Mr Taghdir does not understand the mother’s hostility.  Mr Taghdir had not taken appropriate consideration of the concerns expressed in the family report and the section 11F report about the mother.  He had drafted orders that do not work.

10. The father has made a complaint to the Legal Services Commission about Mr Taghdir.  Mr Taghdir had taken far too long to engross orders.  He has, in the current proceedings, subpoenaed only the police records and not those of the schools. 

The Submissions of the Mother

1. The mother submitted that there had been no material change in circumstances.  Recently the father’s work changed and he wanted an extra night per fortnight and she had agreed.  The assessment of X had just been part of the school resilience program.  None of the professionals who have seen X flagged any further concerns.  A Ms A has seen X once but had not responded to the mother.  There was no material change of circumstances.  The father has said he would only accept four non-consecutive weeks of holidays and she wants two weeks free in July.  She did not support the removal of Mr Taghdir.

The Submissions of the Independent Children’s Lawyer

1. Mr Taghdir referred to the Rice & Asplund case.  He responded to some criticism (which I have not detailed) about his seeking documentation from the father.  The problem is the father’s lack of understanding.  There has been no material change of circumstances.  All the issues now raised were raised in the family report.  Orders were made by consent.  X’s health and related matters were ventilated in the original hearing.  The other matters which the father raises about his inability to have the mother negotiate are not a matter of change. 

2. So far as the July holidays are concerned, the father relies upon the clause in the orders to negotiate, but the fact that the mother does not agree is not a change of circumstances.  The default position in the orders was the suspension of time.  It was nothing new.  It was in the orders.  The father did not originally seek time in the July holidays.  His amended application on 1 May 2018 had various alternatives.  There were a lot of discussions before the final orders were made.  It was not a short day at work.

3. So far as his removal was concerned, Mr Taghdir noted that the complaint to the Legal Services Board had been dismissed.  He admitted a delay in engrossing minutes of orders.

The Relevant Test

1. Although the doctrine in Rice & Asplund has been the subject of much consideration over the years, in my respectful view there is no need to go any further than the decision of Warnick J in SPS & PLS (2008) FLC 93-363, which has been quoted with approval on numerous subsequent occasions. I refer to the whole of His Honour’s comprehensive discussion about Rice & Asplund by reference. At paragraph [48] His Honour observed:

   In my view, reflection on the rule shows that:

   (i)What 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.

   (ii)In its original formulation, the rule is directed to application as a preliminary matter.  Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing.  The consequences of that determination have received little attention.

   (iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

   (iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

   (v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   (vi)“Shorthand” statements of the rule may contribute to its misapplication.

   (vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

2. His Honour went on at paragraphs [49] to [87] to give detailed reasons for his general summary just referred to and I have, of course, regard to all of it.  I note in particular that paragraph [57] in discussing the decision of Nygh J in In the Marriage of McEnearney (1980) FLC 90-866 His Honour set out the following in the judgment of Nygh J:

   …the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.

The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child. (emphasis added)

Some of the Earlier Materials Filed by the Parties

1. It should be noted that I do not propose to paraphrase the parties’ affidavit in any detail at all.  Each of the parents is deeply critical of and complains about the other.

2. A useful starting point is the section 11F memorandum of Ms F dated 29 May 2017.

3. On the second page Ms F recorded the following:

   ·    The parental relationship has been charactered by conflict and family violence.  Neither parent spoke about the other in a positive manner.  Mr Magden described Ms Kading as having a domineering personality and a confrontational manner.  He also described her as wanting “sole control” of the children.

   ·    Mr Magden accused Ms Kading of parental alienation, citing her determination to be the central figure in the children’s lives, and her lack of respect for his role in the children’s lives.  Mr Magden was concerned that Ms Kading may relocate again, further afield. 

·    The parents attempted mediation in April 2016, however, Ms Kading stated that she refused to agree as Mr Magden provided a spreadsheet with dates for the whole year.  Ms Kading preferred some flexibility.  Mr Magden did not think Ms Kading appreciated his work requirement and the need for leave to be pre-arranged.

·    Mr Magden stated he was happy to enter into a genuine negotiation in order to be flexible at times. 

·    Neither parent believes the other is acting in the best interests of the children. 

1. It should be noted that Ms F was concerned that the father had not taken responsibility for family violence behaviour and that Ms F was also concerned that the mother had not promoted or facilitated the children’s relationship with their father, whom she regarded as unimportant in the children’s lives.

2. The family report of Ms B is annexed to her affidavit sworn 25 October 2017.  At paragraph 17, Ms B recorded:

   Mr Magden was concerned that the mother’s attitude towards him was mostly hostile and she did not acknowledge his work restrictions when organising his time with the children.  He believed she preferred him to be out of the children’s lives and considered her hostility towards him was unjustified and not helpful to the children.  He described the mother as having a dominating personality who liked to control things, “She wants to be a sole parent and avoids me being a part of the children’s lives”.  He said he had asked for several weeks if he could have the children for a few days in the holidays, ie Wednesday - Sunday but that she had consistently refused.  He felt she only did what she was compelled to do and so any orders would need to be very specific to avoid arguments between them.

1. Ms B recorded the mother’s considerable reservations about the father’s parenting style and noted at paragraph 29 that the mother had acknowledged that X might have some developmental problems.  At paragraph 42 both parents agreed that X would benefit from a further assessment and the mother agreed to arrange it through the school counsellor.  At paragraph 45, the report noted:

   The parents were informed that the Family Report would recommend the continuation of the current arrangements plus time in school holidays as per the father’s application.  They said they would inform the mother’s solicitor to prepare minutes of consent for Final orders along these lines.

1. At paragraph 56, Ms B recommended the children spend alternate weekends with their father, i.e. from Friday 6:00pm till Sunday 6:00pm, and for one week in term 1 and term 3 holidays and for two non-consecutive weeks in summer holidays.  She also recommended that X be referred to a child psychologist for a full assessment and any necessary treatment.

2. In his amended initiating application filed on 3 May 2018, the father proposed alternatives as to the children’s spend time regime.  I note that he sought that the children be enrolled in a school near his residence starting from the start of the 2019 year.  He also sought that the children spend one week in term 1 and term 3 school holidays and two non-consecutive weeks in the summer holidays with the father if the children lived within 20 minutes of where he lived, but that they spend two weeks in the term 2 school holidays in the event that the mother continued to live at Town E.  I note that in his affidavit also filed on 3 May 2018 the father deposed at paragraph 13:

   As far as I am aware at this time, the children do not have any special needs or requirement for ongoing medical treatment.

1. On 29 May 2018, final orders were made by consent.  Those orders were consistent with the recommendations of Ms B and provided, relevantly, for time of one week in each of the first and third school holidays, but none in the second.

2. The matter next came before the Court pursuant to the mother’s contravention application lodged on 6 August 2019 which was to do with the issuing of passports.  The only relevance of this application is the last paragraph, paragraph 14, of the wife’s supporting affidavit which reads as follows:

   Mr Magden’s behaviour also reveals that any objection or concern about the children having passports and travelling is about his intended control rather than any concern for the children’s welfare due to his insidious continuing emotional abuse of the children, and financial abuse by not contributing to our children’s non-periodic expenses, demonstrating his deliberate intent to inflict financial stress upon me.

1. The father’s responding affidavit was filed on 11 October 2019.  Much of it is irrelevant historical background.  I note that he has moved from Suburb C to Suburb D and was seeking change as a result.  He sought a section 11F report.  The affidavit details all too numerous complaints about the mother’s alleged misconduct including assertions of perjury and false declarations, and, indeed, complaints about the conduct of Judge Curtain and of Mr Taghdir.

2. The father’s initiating application filed 12 December 2019 seeks that the alternate weekend time during this term 2 holidays together with an additional two nights. 

3. In his supporting affidavit filed 12 December 2019 the father sets out the kernel of his application which I will set out in full at paragraph 2:

   2. I applied to the Court to vary the current orders dated 29 May 2018 on the following grounds: 

   a. There are significant changes in circumstances affecting the children since the Orders were made.

   b. The Orders are not fit for purpose and the mother has contravened the orders by: 

   i. Generally, refusing to communicate or discuss with me matters relating to the children, despite both parents having equal shared parental responsibility [para 1];

   ii. Specifically, refusing to negotiate school holiday time [paras 3(d), 3(e), 3(f)]; 

   iii. Failing to inform me regarding the children’s health concerns and referrals to health professionals [paras 7(a), 8(b)].

   c. The Orders do not ensure that X’s developmental needs are being addressed.  The Family Report of 17 Oct 2017 recommended that the mother ensure that X be referred to a child psychologist for a full assessment but this assessment has still not been carried out, more than two years later.  X has recently been diagnosed with a behavioural disorder by his GP (see paragraph 34).

   d. The Orders do not ensure the children’s needs and wishes are paramount.  The Orders had little input from the children themselves, partly due to the fact that X was extremely withdrawn and difficult to engage at the time of the CIC and Family Reports were compiled in 2017. 

   e. The Orders do not adequately protect the children from the psychological and emotional harm caused by their mother’s hostility towards their father and her on-going attempts to disrupt their relationship with him.  This is impacting on their mental health. 

   f. The Orders do not make provision for future negotiation of the issues or resolution of disputes.  Unless a way of discussing, negotiating, and resolving matters is specified, the inevitable outcome will be further litigation.

4. The affidavit then embarks upon a history of the background to the matter as the father sees it, his assertions of perjury and the like in relation to contravention allegation, and I note that it is put at paragraph 12 that his change of residence should give rise to the children attending a school near him.  Thereafter there is a lengthy series of complaints about the mother’s conduct.

1. At paragraph 84, there are a series of complaints about alleged bullying on the part of Judge Curtain.  At paragraph 85, there is a complaint about Mr Taghdir which accuses him of incompetence.

2. The mother has filed two further affidavits.  I have, of course, read all the affidavit material but it is not necessary to quote them all at this stage.

The Rice & Asplund Point

1. It is immediately apparent that these two parents both remain deeply hostile to one another.  The paraphrase of the father’s submissions set out earlier does not fully indicate the all too obvious (even over the telephone) concentrated animus that the father has for the mother.  His materials, (which include an assertion that the mother might care to contemplate moving closer to him now that he had moved to Suburb D in circumstances when he well knows the mother wants to stay in Town E), suggest to me a somewhat controlling personality on his part even though he has been complaining vividly about the mother in the same terms throughout. 

2. There is nothing new in the parties’ complaints about one another.  Each has been accusing the other of unreasonable, if not worse, behaviour ever since the matter first came to Court.  The fact that the father has moved his home does not materially alter anything.  The fact that the mother does not agree to the father’s proposals is not in any sense a change.  The father has advanced rather generalised assertions that the children, who are now older, may want to spend more time with him.  There is no evidence to support this assertion, which I note has been made only in the most general terms by the father. The question of X’s health, which is perhaps the most strongly emphasised matter in the father’s written and oral submissions, was plainly in issue before the 2018 orders. The pathway for its assessment is still, if necessary, extant in those orders.

3. The reality is that for all the parties’ difficulties there has only been one contravention application filed since the orders made in May 2018 and that was the mother’s one relating to passports.  That application itself is larded with material derogatory of the father and does her no credit.

4. These parents both see themselves as controlled by the unreasonable behaviour of the other.  The material strongly suggests to me that they are two peas in the same pod in this regard.  Whoever is the more to blame for the deplorable state of their interrelationship could only be determined following a final hearing, but on any view of the matter it is in no way new.  It entirely predates the orders made in 2018.

5. The fact is that the orders made in 2018 appear to have been generally complied with.  To the extent that there may have been non-compliance it is plainly of a most marginal sort.  The children do not need to be put through the further ordeal of being the subject of proceedings in circumstances where nothing has materially changed.  Both of these parties are plainly stressed by the conduct of the other and they are plainly more stressed again by the conduct of the litigation.  So much is apparent from the tenor of their materials.  It is not in the children’s best interests that their parents continue to be subject to strain of this sort. 

6. The Rice & Asplund objection is concerned first and last with the primary consideration of the best interests of the children.  Although it puts the matter rather succinctly, there could scarcely be a clearer case in which further litigation is not in the children’s best interests in the light of all the circumstances.

The July School Holidays

1. The father agreed to orders that provided for him to have no time in the July school holidays in May 2018.  There was a standard order made for, “Such other times as may be agreed by the parties by mobile text message and/or email”, but that appears to be merely the subject of further disputation.  The father’s complaint is that the children do not spend time with him for a period of four weeks in each year. 

2. This may indeed be the case and it would, in all probability, benefit the mother if she were able to come to some agreement with the father, but in circumstances where the May 2018 orders plainly represented a compromise by both sides between the parties (this is all the more obvious since each of them complains, in effect, that to an extent the orders are unfair to them) it is not possible to disaggregate that bargain now in the way that the father seeks.  The extant orders should remain.  There has been no material change in circumstances denoted by the father in any event.

The Removal of the Independent Children’s Lawyer

1. I have not set out the father’s complaints in his affidavit material about Mr Taghdir in any detail.  He has filed a statutory declaration by his partner supporting his perceived complaints from 2018.  In my view the lengthy written submissions made by the father only go to show the highly subjective view he appears to have of the world.  Construed objectively, there is nothing in the materials to support the complaints made.  True it is that Mr Taghdir was tardy in forwarding an engrossed minute to the Court, but that is not evidence of misconduct or bias.  At best it is a dereliction from professional obligations of a minor nature.  I should make it clear that there is nothing in the materials before me that suggests that Mr Taghdir has or, indeed, would perform his obligations as an Independent Children’s Lawyer in anything other than an appropriate manner.

2. It is not necessary for me to form any concluded view as to whether the children’s best interests would, indeed, be represented by retaining Mr Taghdir as the Independent Children’s Lawyer in the event of future litigation.  That matter can be considered when and if any further Court application is made.  It is to be hoped that the parties’ regrettable tendency to concentrate their emotions so vividly upon one another may decrease with the passage of time and that further Court applications will not be necessary.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 28 May 2020