MONROE and MONROE

[2015] FCWAM 122

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MONROE and MONROE [2015] FCWAM 122

CORAM: KAESER M

HEARD: 10 JUNE 2015

DELIVERED : 23 JUNE 2015

FILE NO/S: PTW 1185 of 2010

BETWEEN: MR MONROE

Applicant

AND

MS MONROE
Respondent

Catchwords:

Rule in Rice v Asplund; final orders made June 2103; where father withdrew from previous proceedings; where father had legal advice at the time; fresh parenting application by father; many alleged changes actually took place before final orders made; insufficient change in circumstances to warrant fresh proceedings; application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Mr Mackie

Solicitors:

Applicant: Self Represented Litigant

Respondent: Legal Aid WA

Case(s) referred to in judgment(s):

Carriel & Lendrum (2015) FLC 93-640

Collivas & Cassimatis [2007] FMCAFam 293

In the marriage of Rice & Asplund (1979) FLC 90-725

Miller & Harrington (2008) FLC 93-383

Miller & Harrington [2008] FamCAFC 150

Poisat & Poisat (2014) FLC 93-597

SPS & PLS (2008) FLC 93-363

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1This matter involves a consideration of the “rule” in Rice & Asplund which is a principle of law established from the decision of In the marriage of Rice & Asplund (1979) FLC 90-725. This decision has evolved into a longstanding principle in which the Court must firstly consider whether the principle is to be considered on a preliminary basis or one after a detailed investigation. In addition, the Court must, in considering such a principle, still take into account the best interests of children and the various provisions such as the objects and principles of the Act in coming to its determination (see the views of Warnick J in SPS & PLS (2008) FLC 93-363 at [64] and [65]). As Warnick J said at [81] in SPS & PLS:

Thus, in my view, when the threshold question described in Rice & 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 the 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 circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will, or ought be, about the interests of the child in not being subjected to further litigation, is more powerfully in the child’s welfare, than to allow the application to continue.

2It is clear that the Court must, if determining the matter at a preliminary stage, take the applicant’s case at its highest and proceed on the basis that the evidence produced by the applicant is correct. This view is also supported by the Full Court in Poisat & Poisat (2014) FLC 93-597.

3The Court in this matter is satisfied that the principle should be decided on a preliminary basis in all the circumstances.

4The Rice and Asplund principle is that there must be a sufficient change in circumstances between the making of final orders in relation to children’s issues and the filing of fresh proceedings.

5In Miller & Harrington [2008] FamCAFC 150, the Full Court considered an appeal by the mother against orders made by Barry J to dismiss her fresh application on the basis of the rule in Rice & Asplund. At the original trial, Buckley J found, amongst other things, and this is set out at [106] of the Full Court decision, that:

·the mother was unable to facilitate a positive relationship between the children and the father;

·the mother was of the view that the children should choose for themselves whether they see their father or not and, for example, had told the children in the waiting room of the report writer that they did not have to see their father if they elected not to;

·each child had indicated to the report writer that they did not wish to see their father;

·the mother had “over exposed” the children to the dispute. The elder child made it clear she did not want any contact with the father;

·the children have been unduly and negatively influenced by the mother and she was unable to facilitate a relationship between the children and the father while they resided with her;

·if the children were placed with the father they would experience emotional and behavioural difficulties in the short term as they learned to adjust;

·if the children did not reside with the father, contact orders would be ineffectual; and

·in that eventuality, the relationship between the father and the children would further deteriorate.

6The Full Court accepted that taking the mother’s case at its highest, the asserted changes of circumstances appeared to be [at 110] that:

·the father and his family denigrated the mother to the children which had caused the elder child to leave the father’s care (a matter which Mr Page SC described before Barry J as “the most important” of the changes that had occurred since Buckley J’s judgment.);

·the mother had given birth to a child and a relationship had developed between the children and that child and separation from that child was “a source of some anxiety”;

·the children left the father’s residence “unaided by either of their parents” and had chosen to “go back into hiding”;

·that action was an indication of the stress the children were under;

·the children were now aged 14 and 11 (as opposed to 12 and nine before Buckley J).

7In those circumstances, the Full Court found that the matters said to be changes on behalf of the mother were in fact [at 116]:

manifestations of the fact that the central matters found by Buckley J ‑ including the antipathy of the children toward their father, the difficulties his Honour said would exist for the children on a change in their residential care, the inability of the mother to promote or foster a relationship between the children and their father and the influence of the mother’s attitudes on the wishes of the children – continued to pertain.

8In those circumstances the appeal by the mother was dismissed.

9These principles were recently followed in the Full Court decision of Carriel & Lendrum (2015) FLC 93-640. The Full Court acknowledged that the trial Judge [at 25] recorded that the “rule” in Rice & Asplund was the subject of detailed consideration in Miller & Harrington (2008) FLC 93-383, SPS & PLS (2008) FLC 93‑363 and Collivas & Cassimatis [2007] FMCAFam 293. The Full Court acknowledged that his Honour correctly accepted that the mother’s evidence should be taken at its highest and that the “threshold question” enunciated in Rice & Asplund is determined as a preliminary matter, and on the merits. His Honour also made it clear that he would assume that the evidence of the mother is accepted in order to assess whether there was a sufficient change of circumstances to justify embarking on a hearing.

10His Honour referred to the above-mentioned quote by Warnick J in SPS & PLS.

The factual background

11In the previous proceedings between these parties, the mother filed the original proceedings on 8 March 2010. A response was filed by the father on 12 April 2010. The matter eventually proceeded to a trial listing to commence not before 31 July 2013. The trial had in late stages been Judge Managed by Moncrieff J.

12On 8 April 2013, his Honour dealt with a number of issues including the listing of a contravention application filed by the father and the provision of a further updating report by the single expert, Dr Phil Watts. His Honour adjourned the matter to 13 May 2013 and then further adjourned it to 24 June 2013. On that occasion both parties were represented by experienced counsel. The father’s counsel effectively advised the Court that the father sought to withdraw from the proceedings. On that basis the Court made the following orders:

1.The trial in this matter listed to commence not before 31 July 2013 be and is hereby vacated.

2.The children, [CHILD A] born [in] 2003, and [CHILD B] born [in] 2006, live with the Applicant, [MS MONROE].

3.The Applicant have sole parental responsibility for the said children.

4.There be no order as to costs.

5.All outstanding applications and responses otherwise be and are hereby dismissed.

13The above orders therefore brought an end to the proceedings that had been before the Court for over three years.

14The father then filed fresh proceedings on 10 December 2014, only 18 months later. The matter came before me on 19 January 2015. Given the previous involvement of his Honour, the proceedings were adjourned to his Honour on 23 March 2015. On that date his Honour made orders in relation to the filing of affidavit material by the father that would specifically address the Rice & Asplund issues and otherwise adjourned the matter back before me.

15The father filed that affidavit as required on 10 April 2015. In it he acknowledges a number of issues including:

(a)I have made some mistakes, but what parent hasn’t;

(b)I have since successfully completed many courses and also attended counselling sessions with child psychologist, Carol Smith, who was recommended by Dr Watts [emphasis added];

(c)I now have a better understanding of how to deal with these situations and my only focus is on my daughters’ health and wellbeing;

(d)I have completed all courses and counselling as requested by Dr Watts and the Court, I also completed several other courses that I felt would be beneficial in helping deal with issue [sic] concerning the girls;

(e)The courses recommended and I have successfully completed are Mums & Dads Forever, Holyoake, 123 Magic, Challenging the Fury Within, also attended counselling sessions with child psychologist, Carol Smith.

(f)Other courses I have attended to better myself are Self Esteem and Changing Negative Thinking, Assertive Communication, I have also read Dr Watts’ book “Shared Care or Divided Lives” and purchased the 123 Magic DVDs.

(g)He asserts that the reason he withdrew from the previous proceedings was that he believed the ongoing legal action was having a detrimental effect on his daughters and on both the mother and him emotionally and financially. He asserts that he was not aware of the ramifications of withdrawing from the legal proceedings and “regrettably my lawyers did not advise me of the consequences”. He claims he was not aware that he would no longer have any rights or influence in the girls’ development and wellbeing. He asserts that if he had known these facts at the time he would not have withdrawn. He hoped that by withdrawing from the proceedings emotions could subside and in time the parents could re-engage on an amicable level and discuss what was in the best interests of the children.

(h)He says that since final orders were made he received on average monthly calls from the child, [Child B], lasting between 35 and 55 minutes which went well. Given a violence restraining order that was in place at the time, he was not able to call [Child B] so he was left to receive calls from her whenever they occurred. He last spoke to [Child B] on 19 July 2014. During that conversation she expressed feelings of love for the father. He claimed to have been at a school assembly the week before that phone call. He acknolwedged he has not spoken to his daughter, [Child A], in nearly four years.

16There are some difficulties with the assertions set out by the father above.

17The various courses that he relies upon (and there are annexures which confirm his attendances) are all courses that were attended well prior to the orders in June 2013. Much of it is in 2010 which is well prior to even the single expert report. There is no evidence of any involvement in courses since the 2013 orders were made [emphasis added].

18In my view, the fact that the phone calls were occurring for some period of time after the orders were made is not particularly relevant. More importantly, the phone calls were not made pursuant to an order and the cessation of those calls was therefore not a breach of an order. Those phone calls were something that the child felt comfortable in doing following the dismissal of these proceedings and it may be something the child feels comfortable in doing in the future. The mother accepted that the father was at the assembly in July 2014. He accepts however that he did not see either child at the assembly given the large number of students.

19I am conscious that there may be a stronger reason to refuse the re‑litigation of parenting issues where a Court has finally determined an application on its merits. In this case that would have been after a trial had taken place and evidence was tested and a judgment was delivered. It would be, in my view, a stronger case were those circumstances to have existed in this matter. The parties in the previous proceedings would have been put through that process and the evidence would have been tested and findings of fact made by the trial Judge. In my view, in those circumstances, it would be more difficult to argue a change in circumstances.

20It must be kept in mind, however, that this was a matter where the father withdrew from proceedings. Again, this is different, in my view, to a situation where orders are made by default; perhaps for the reason of some technical lack of compliance with an order such as an order for the filing of affidavit material or a lack of appearance. In this case, the father was legally advised by an experienced practitioner whether he received advice as to the implications of his decision is something he will need to deal with with his advisor at the time. From the Court’s perspective however, it is faced with an application by a father to re‑litigate precisely the same issues that were before the Court for a period of over three years. Those proceedings culminated in final orders in June 2013 and it is only 18 months later that the father seeks to re‑litigate these issues [emphasis added]. It would appear the father has had a change of heart and regrets his decision to withdraw from the proceedings. He did so under advice, however, and must accept the consequences of his actions. Given the asserted changes in circumstances and taking them at their highest, I am not satisfied that there is a sufficient change in circumstance to justify re‑litigating these issues again. In all the circumstances therefore, the application by the husband will be dismissed. It is not in these children’s best interests to re‑litigate over these issues as the husband appropriately acknowledged the previous proceedings were no doubt having an emotional effect on both parties and on the children. It is not appropriate in all the circumstances to risk creating that ongoing effect again by re‑litigating.

Orders

1.The proceedings before the Court are dismissed.

I certify that the preceding [20] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary