MIDDLETON & MIDDLETON (No.2)

[2015] FCCA 2786

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIDDLETON & MIDDLETON (No.2) [2015] FCCA 2786

Catchwords:
FAMILY LAW – Mother seeking to change parenting orders made in 2014 after a contested 5 day hearing – rule in Rice v Asplund considered – whether material change in circumstances – whether in children’s best interests to embark on further litigation – Independent Children’s Lawyer supporting Rice v Asplund objection – application dismissed.

Legislation:

Family Law Act 1975

Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93–363

Applicant: MS MIDDLETON

Respondent: MR MIDDLETON

File Number: MLC 10233 of 2012

Judgment of: Judge Burchardt

Hearing date: 20 August 2015

Date of Last Submission: 20 August 2015

Delivered at: Melbourne

Delivered on: 9 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Hamilton

Solicitors for the Applicant: Thexton Lawyers

Counsel for the Respondent: Ms Teicher

Solicitors for the Respondent: Nancy V Battiato

Counsel for the Independent Children’s Lawyer: Mr Combes

Solicitors for the Independent Children’s Lawyer: Agricola Wunderlich & Associates

DRAFT ORDERS

1. The mother’s Amended Initiating Application filed 13 August 2015 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Middleton & Middleton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10233 of 2012

MS MIDDLETON

Applicant

And

MR MIDDLETON

Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended initiating application filed 13 August 2015, the applicant mother seeks significant changes to parenting orders made on 24 March 2014.  Those orders followed a contested five-day hearing in October 2013 and reasons for judgment delivered on 21 January 2014. 

2. The most striking aspect of the application is that the mother seeks sole parental responsibility, whereas the extant orders provide for joint parental responsibility.  The orders sought also extend to a number of other minutiae associated with the well-being of the two children with whom the case is concerned.

3. The father, who is supported in this respect by the Independent Children’s Lawyer, submits that this is a classic Rice v Asplund (1979) FLC 90-725 case and the application should be summarily dismissed.

4. For the reasons that follow, I agree with the father and the Independent Children’s Lawyer.  This is a case in which is it is wholly inappropriate to permit the matter to proceed.

Background matters

1. As earlier indicated, the parties conducted a five-day hearing in October 2013.  My Reasons for Judgment were critical of the extent of the parties’ materials, which I described as prolix, and of the way in which the case was run, taking more time than it should have given the matters in issue.  In order to understand the present application, it is necessary to have regard to the entirety of my reasons in that case, but I would for present purposes note that communication between the father and the mother was always a matter of considerable difficulty. 

2. I would point to a few extracts, however, which may be of some relevance.

3. At paragraph 78, I observed about the mother:

   “78.  She confirmed that she will always be on tenterhooks and will always be protective about her children.”

4. At paragraph 82, I said:

   “82.  The wife was cross-examined about her application for sole parental responsibility.  She said it had been very difficult in the last 15 to 16 months to get any decisions made about the children.  The husband either does not reply or sticks to what he wants.”

5. At paragraphs 113-114, in dealing with the evidence of the family report writer, Mr H, I said:

   “113.     He said that confabulation usually arises with children who are triangulated into parental conflict.  The children give answers that fit the expectations of the other parent.  In the case of an injury, intense questioning is likely to lead to confabulation and the story gets more and more florid.  He said that the substantial number of DHS notifications in this case supported the proposition that confabulation had occurred.  Reinterviewing only reinforces the narrative of the child.  Both parents become hyper-vigilant. 

   114.     Mr H said he had concerns about the ongoing conflict between the parents.  They are a high conflict couple and they have been worse since July 2013.  He said they needed carefully tailored arrangements and should undertake a parenting orders program.  He said both parties required counselling and the children required social structures, like school and kindergarten.”

6. Paragraphs 190-191, I said:

   “190     As modified during the course of the evidence, it is clear that the mother would like the father to have extremely limited time with the children, notwithstanding her concession that the children love him. 

   191.    This position arises out of the mother’s subsisting and, at this stage, almost insuperable, fear that the father will at some point lose his self-control and hit the children.”

7. Paragraph 194 (having dismissed the mother’s concerns of physical assault on the children by the father), I went on:

   “194.    In addition to the counselling the mother is undergoing to deal with violence experienced at the father’s hands, she should undergo not only a parenting orders program, as Mr H recommended, but also counselling to enable her to come to grips with her irrational fears of violence on the father’s part towards the children.  Her application to substantially diminish the father’s time is not made out.”

8. In dealing with a question of parental responsibility, I said at 196-198:

   “196.    The mother seeks sole parental responsibility essentially because she finds it very difficult to communicate with the father.  The father seeks joint parental responsibility. 

   197.    This is a case in which there has been family violence, but in my view, it is in the best interests of the children that there be an order for joint parental responsibility.  The fact is that if I make the order the mother seeks, her views about the father will lead her to excise him from all decision making in the matter. 

   198.    Once this case is over, it is reasonable to suppose that the parties will settle down, and that their communication may become, absent the stress of the proceeding, somewhat improved.”

9. In expressing my conclusions, I said at paragraph 204:

   “204.    The parties have expended an enormous amount of time and energy and money on this case.  That reflects the intensity of the emotions, and the unfortunate failure of their legal advisers to be able to assist them to deal with the matter in a more circumscribed and less expensive way.”

10. Although reasons for judgment were published on 21 January 2014, it took until 24 March 2014 to produce final orders. 

11. There the matter rested until 13 April 2015, just over 12 months later, when the mother filed the original Initiating Application in this case.  The Application was accompanied by an affidavit apparently created by the mother herself.  It runs to some 79 paragraphs over nine pages of text together with dozens of pages of annexures, predominantly messages passing between the father and the mother.

12. I do not propose to work through the contents of the affidavit in detail.  It contains a litany of complaints on the part of the mother to the effect that the father wilfully misinterprets the extant court orders, fails to comply with the court orders by failing to take [X] to dancing and other events and had failed to facilitate [X] and [Y] starting ballet and jazz in 2015.

13. The father’s Response filed 10 July 2015 seeks the dismissal of the application.  Inter alia it asserts:

    “I wish to have the applicants applications dismissed as I am very happy with the way the court orders are.  They are crystal clear to me and I have no problem when it comes to interpreting them.”

14. The response refers to Rice v Asplund and asserts further:

    “The applicant is only seeking the changes now as she is no longer happy with the orders and wants them changed.”

15. The respondent filed an affidavit contemporaneously with his response.  It essentially raises the question of the decision in Rice v Asplund and otherwise constitutes a series of complaints against the mother misinterpreting the extant orders.

16. The mother filed a further affidavit on 17 June 2015.  At this stage, she was still self-represented.  It is described as a continuation of the affidavit filed on 13 April 2015.  It runs to some 15 pages of text and 133 paragraphs, together with approximately one inch of annexures, once again substantially consisting of exchanges between the father and mother.

17. The substance of the matters complained of are generally to do with [X] and [Y]’s ballet and jazz, together with a number of other complaints.  The headings in order are:

    “[Mr Middleton] still refuses to take [X] and [Y] to ballet and jazz

    [Mr Middleton] has been smoking in the car with [X] and [Y] with him

    [Mr Middleton] again fails to put [X]’s needs first

    [Mr Middleton] fails to take [X] to school

    [Mr Middleton] Breaches the Court Orders

    [Y] is struggling with the amount of time spent with [Mr Middleton]

    [Mr Middleton] refuses to take information from me that I try to hand deliver to him personally

    [Mr Middleton] demonstrates no common sense

    [Mr Middleton] refuses to pay his half of [X]’s school fees

    [Mr Middleton] refuses to communicate in relation to [X] and [Y]

    [Mr Middleton] refuses to take [X] to school friends’ birthday parties she gets invited to

    [Mr Middleton] Refuses To Understand The Mistake Made By His Previous Lawyer Regarding Christmases from 2014 Onwards

    Christmas 2013

    [Y] falls into a 1.8 metre public pool

    [X] attends her prep orientation days at [S] Primary School

    [X]’s Kindergarten Transition Report

    [Mr Middleton] fails to return communication books”

18. These headings give a clear indication of the substance of the affidavit. 

19. The wife filed a final affidavit on 7 August 2015.  In it, the first heading is:

    “Why I seek an order for Sole Parental Responsibility”

20. At paragraph 1, the affidavit says:

    “1.    I strongly believe if I was granted sole parental responsibility, that it would dramatically reduce the amount of conflict and tension between myself and [Mr Middleton] to the benefit of the children.  Currently, there are a total of at least 9 separate issues come up where [Mr Middleton] has failed to respond to regarding the children’s best interests. 

    a.    These issues include:

    i.   No response to my ballet questions;

    ii.  No response to schooling questions;

    iii.     No response to [X] attending her friends’ birthday parties;

    iv. No response to my Christmas Eve, Christmas Day and Boxing times discrepancies;

    v.  My request for mediation in September 2014;

    vi. No response to my question regarding [Y] attending day care;

    vii.    No response to my question regarding [Y] and [X] attending swimming lessons;

    viii.   No response to my question regarding [Y] and [X] attending music lessons;

    ix. No response to [Y]’s christening.”

21. The affidavit goes on to detail steps that the mother has taken in relation to personal development and her steps to commence “looking into the Parenting Orders Programs with Lifeworks and Relationships Australia” (paragraph 13).  The affidavit went on to respond to the husband’s affidavit, essentially asserting that the doctrine in Rice v Asplund did not operate.

The decision in Rice v Asplund

1. Paradoxically the decision in Rice v Asplund is not, in my respectful view, where one starts.  Rather, the operation of the rule Rice v Asplund was, in my respectful opinion, comprehensively and authoritatively described by Warnick J in SPS v PLS (2008) FLC 93–363. I refer to and respectfully adopt the entirety of the observations Warnick J in that case. For these purposes, it is sufficient to refer to what his Honour said at [48(iii)]:

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

2. At [81] his Honour continued:

   “Thus, in my view, when the threshold question described in Rice v Asplund is determined as a preliminary matter, it remains a determination “on the merits”.  Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstances shown to justify embarking on a hearing.  Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”

The submissions made at Court

1. Counsel for the mother submitted that the question was whether there had been a significant change in circumstances.  He pointed to the brevity of the father’s affidavit filed in response.  He submitted that extracurricular activities were being prohibited, such as ballet and dancing, and the children were lacking socialisation with their peers.  He submitted the father was not paying child support, and that only the mother was paying for extracurricular activities.  He said that the father was smoking in the car with the children and that the children, when returned, smelt of cigarette smoke.  He noted that [X] was to attend a private school but the father was not contributing to fees.  He said the final issue raised was the total failure on the father’s part to answer telephone calls and the fact that [X] had not been taken to school that day.

2. Counsel for the father, who sought instructions on some of the matters raised, confirmed that [X] had not gone to school on the day, because of the court case.  The assertions of smoking in the car were denied.  So far as dancing was concerned, the girls refused to go.  There was no order for private schooling.  It was submitted that this case was “on all fours” with Rice v Asplund.  The issues of parental responsibility and the amount of time that children spent with the father were dealt with in the original decision.  The mother should, if she asserting breach, have brought a contravention application.

3. Counsel for the Independent Children’s Lawyer submitted that any suggestion that the extant orders were ambiguous was hard to understand.  He pointed out that these orders had taken quite some time to craft in 2014.  He referred to the paragraphs of the judgment dealing with sole parental responsibility, which I have already set out above.  He strongly submitted that this was a case in which the rule in Rice v Asplund clearly applied.

Consideration

1. It is important to remember, as Warnick J pointed out, that the rule in Rice v Asplund is part of the “best interests principle”.  That principle, as I understand it, is to the effect that, in parenting disputes, it is the best interests of the children that are the overriding consideration.

2. The question becomes, therefore, whether there has been a sufficiently significant (otherwise described as “material”) change in circumstances to justify the Court embarking upon further litigation.

3. It is concerning to note that, even at this early stage, the material filed by the mother shows all the signs of prolixity, which I had commented on in the original trial.  It is clear, taking the materials as a whole, that the mother’s frustration and difficulty arises out of the communication problems she has with the husband.  It should be noted that her complaints about the father's non-responsiveness are entirely consistent with what I found to be the pattern of the parties’ communication in my earlier judgment.

4. The claim for a change in the order as to parental responsibility is, in effect, no more than a repetition of the position the mother unsuccessfully advanced in the original trial.  The matters she now asserts are essentially exactly the same as those she advanced, unsuccessfully, then.

5. There is clearly dispute between the parties about a number of ongoing matters, such as the issue as to whether the father smokes in the presence of the children and whether he improperly seeks not to have them participate in extracurricular activities.  It is true that these matters were not perhaps asserted in terms in the original proceeding, scarcely surprising in [Y]’s case, as she was then so young.  Nonetheless, the tenor of them is exactly the same as those in issue in the earlier proceeding.  As Mr H asserted, this is a high-conflict couple.  My hopes that things would settle down between them have proved overly optimistic.

6. Although it puts the matter shortly, the outcome of this case is all too clear.  The concise but forceful submission of the Independent Children’s Lawyer should be upheld.  The matters now asserted by the mother do not constitute a material change in circumstances.  To the extent that the father may not be behaving as he should, the proper way forward is through contravention proceedings.

7. These children have been the subject of litigation for quite some time.  Litigation of itself will be stressful for the parents and will undoubtedly flow on to the children.  It is absolutely plain that the matters now asserted by the mother are simply not sufficient to justify, in the children’s best interests, a further resumption of legal proceedings.

Conclusion

1. The application must be dismissed.  I will hear the parties as to any other orders sought.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 9 November 2015