MARING & BENISH

[2020] FCCA 2004

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARING & BENISH [2020] FCCA 2004

Catchwords:
FAMILY LAW – Parenting – fresh application filed 9 months after final orders – children’s views – summary dismissal – Rice & Asplund.

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Rice & Asplund (1979) FLC 90-725

Marsden & Winch (2009) 42 FLR 1

Applicant: MS MARING

Respondent: MR BENISH

File Number: ADC 2949 of 2008

Judgment of: Judge C Kelly

Hearing date: 9 July 2020

Date of Last Submission: 9 July 2020

Delivered at: Adelaide

Delivered on: 9 July 2020

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

ORDERS

1. The mother’s Initiating Application filed 2 March 2020 is summarily dismissed pursuant to Rule 13.07 of the Federal Circuit Court Rules 2001.

2. The Orders pronounced on 11 July 2019 continue as set out hereunder:

   1.All previous parenting Orders are discharged.

   2.The father have sole parental responsibility for the children X born 2005 and Y born 2007.

   3.The children X and Y live with the father.

   4.The mother be at liberty to send cards, letters or photographs (limited to once per month and on the children’s birthdays and at Christmas) to the children care of the father’s post office box.

   5.The father ensure that any cards, letters or photographs are provided to the children unless their content is inappropriate and the father facilitate the children responding to the mother in the event that they express a wish to do so.

3. The children X and Y spend time with or communicate with the mother as may be requested by either child at any time.

4. The father facilitate any request from X or Y to re-establish communication with the mother or to spend time with the mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2949 of 2008

MS MARING

Applicant

And

MR BENISH

Respondent

EX TEMPORE REASONS FOR JUDGMENT

These reasons were delivered orally at the conclusion of an interim argument.  They have been edited and corrected from transcript to correct any grammatical errors, include relevant citations and generally to make the oral reasons easier to read.

1. On 2 March 2020 the mother filed an Initiating Application seeking parenting orders in relation to the parties’ children X, aged 15 years, and Y, aged 12 years. The father argues that the mother’s Application should be summarily dismissed, or alternatively, that it be dismissed on Rice & Asplund grounds. I have heard submissions from each parent and for the reasons that follow, I will dismiss the mother’s Initiating Application, as it is not in the children’s best interests to allow further litigation through the Court. 

2. The decision of the Full Court in Rice & Asplund[1] and subsequent decisions stand for the principle that ongoing Court disputes between parents are not in a child’s best interests and that there would generally need to be a significant change in circumstances to justify re-opening the litigation.[2]   It is often referred to as “the Rule in Rice & Asplund”, but the Full Court has emphasised that it is not so much a rule as a shorthand statement regarding the best interests of the children.

   [1] Rice & Asplund (1979) FLC 90-725

   [2] Marsden & Winch (2009) 42 FLR 1

3. By way of background, the mother has faced numerous difficulties across the years, particularly in relation to her mental health and significant substance abuse issues.  The mother concedes that she has not acknowledged the extent of her problems in previous years.  She could not identify the impact that her behaviour had upon X and Y – the children were unable to see her as a safe, reliable parent who was attuned to their needs. 

4. The initial parenting proceedings commenced in 2008.  Following intervention by the (then) Department for Families & Communities, the children were placed in the father’s care and have lived with him since then.   Proceedings in relation to the children’s parenting arrangements recommenced and continued over the intervening years.  Final parenting orders in 2012 provided for minimal engagement between the mother and the children, provided she was able to meet certain prerequisites in relation to engagement with support services and the like.

5. Ultimately X and Y did not spend any time with the mother for approximately five years.

6. The mother filed a further parenting application in 2015, seeking to re-engage with the children.  The Court initially adopted a very cautious approach to the children’s time in relationship with the mother, however there were positive signs regarding her lifestyle. X and Y expressed a willingness to re-connect with their mother and the father supported the children’s wishes.

7. The children spent supervised time with their mother in 2016, progressing to unsupervised time in 2017, with the father’s co-operation. Unfortunately in late 2017 an incident occurred when the mother formed a belief that Y had touched the mother’s infant baby C in an inappropriate manner and confronted Y.  There was no basis for this belief and the mother’s attitude led to a rupture in the children’s relationship with her.  Other concerns were also been raised about the mother’s behaviour and the children’s time with the mother was suspended.

8. The children were interviewed by a family consultant in March 2019.  X and Y reported a range of other concerns about their mother’s behaviour whilst in her care. They referred to their mother becoming angry very quickly, for reasons they did not understand.  To quote from Dr A’s interview with X:

   “We’ve given her so many chances.  I have given up; there will just be another problem.”

9. X went onto say that he would wait until he could drive a car before he spent time with his mother; that way he could see his mother and, if something happened, he could drive home.  Y agreed with that approach. 

10. Both children confirmed that they did not wish to have any further communication with their mother, given her behaviour.  The mother disengaged with the Court process and final parenting orders were made by default on 11 July 2019.

11. In her recent Affidavit filed 2 March 2020 the mother has finally acknowledged that her concerns regarding Y ‘touching C inappropriately’ were unjustified and that her reaction to Y at that time was wrong.  I accept the mother’s evidence in this regard is genuine.  The difficulty is that the mother’s relationship with the children was already very tenuous. The mother’s actions totally derailed any trust or confidence the children had established with her.

12. The mother concedes that her parenting capacity was inadequate at that time, and says that she was prescribed certain medications that impacted her capacity to control her anger.  She tells the Court that she has now moderated her use of medication.  She also assures the Court that she is no longer abusing alcohol or her prescription medication, taking only the medication that she is prescribed for her mental health.    The mother says that these changes have led to a significant improvement in her mental health and her behaviour, which would be evident to the children if they were able to resume spending time together. 

13. The mother has provided some documentation to support this.  I accept the mother’s submissions that her lifestyle has changed – she is now sober, has regular psychological support and attends Alcoholics Anonymous regularly.  That is all very positive and provides some reassurance to the Court. 

14. These improvements in the mother’s mental health represents a significant change in circumstances and I conclude that the relevant principles identified in “the Rule in Rice & Asplund” do not apply as a barrier to the mother’s application.  However, the Court must consider whether further litigation is in the children’s best interests, nonetheless.

15. X and Y’s parents have been engaged in litigation on and off since 2008 and the last round proceeded over four years.  The children have been affected by the Court proceedings throughout that time, through interviews, supervised time at a Contact Centre, and yet further interviews when the time-spending arrangements broke down.  This places a significant emotional burden upon the children.

16. The Court must pay particular attention to the impact that ongoing litigation has upon the children.  X and Y deserve the opportunity to simply get on with their childhood away from the spectre of litigation between their parents.

17. The children are clearly happy and settled in their father’s care.  The mother complains that he has not encouraged the children’s relationship with her, but I disagree.  In 2017 the father accepted the children were interested in re-establishing a relationship with their mother. He facilitated that process, until the mother’s behaviour deteriorated, again causing distress for X and Y. 

18. The mother has made significant improvements in her life, but the children were very clear that they were not prepared to give their mother further chances, given the emotional disruption she has created in their lives.  The mother’s previous behaviour towards them has led them to a point where they cannot see any benefit in resuming that relationship. 

19. If the mother’s current Application was to proceed, X and Y would be required to attend yet more interviews and assessments.  This cannot be in their best interests and frankly, would be bordering on a form of “systems abuse”.

20. The mother’s lifestyle may have improved and she may be more emotionally available for the children, but X and Y are simply not prepared to take the risk.  They gave their mother another chance during 2016 and 2017 and it did not end well.  The children do not want to risk going down that path again and they should not be forced to do so.

21. I conclude that it is not in the children’s best interests to allow these Court proceedings to recommence and to have the children drawn back into these issues. I conclude that the mother’s application has no reasonable prospect of success and should be dismissed on a summary basis pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001. 

22. I appreciate this outcome will be distressing for the mother, but my obligation is to make parenting orders that are in the best interests of X and Y.  To his credit, the father has agreed to facilitate any request by the children to spend time with the mother, or communicate with her.  I will make an order in that regard, which places a positive obligation upon Mr Benish to facilitate any such request from X or Y. Otherwise the orders pronounced in July 2019 will continue, which allow for the mother to send cards, letters or photographs to the children on a monthly basis and on their birthdays and Christmas.

23. I note there is a typographical error in the previous order.  I will set out the text of those orders again today, for the convenience of the parties.  Finally, the mother also sought an order to access records produced from the Department of Child Protection.  I am not prepared to make that order because such material can only be presented in litigation before this Court.  I have dismissed the mother’s application and there is no further litigation in this Court where that information would be relevant.

24. I make orders as set out at the commencement of these reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge C Kelly

Associate: 

Date: 28 August 2020