Negus & Webb

[2021] FCCA 1477

FEDERAL CIRCUIT COURT OF AUSTRALIA

Negus & Webb [2021] FCCA 1477

File number(s):

ADC 332 of 2012

Judgment of:

JUDGE C KELLY

Date of judgment:

15 March 2021

Catchwords:

FAMILY LAW – children – final consent orders in 2015 – Rice & Asplund  – summary dismissal – ongoing litigation not in the children’s best interests.

Legislation:

Family Law Act 1975 ss 60B, 60CA, 60CC

Federal Circuit Court Rules 2001, Rule 13.10

Cases cited:

Rice & Asplund (1979) FLC 90-725
King & Finneran [2001] FamCA 344
SPS & PLS [2008] FamCAFC 16

Mazorski & Albright (2008) FamLR 518

Goode & Goode [2006] FamCA 1346

MRR & GR (2010) FLC 93-424

Number of paragraphs:

39

Date of last submission:

15 March 2021

Date of hearing:

15 March 2021

Place:

Adelaide

Counsel for the Applicant:

Ms Dickson SC

Solicitor for the Applicant:

Barnes Brinsley Shaw Lawyers

Counsel for the Respondent:

Mr Robinson

Solicitor for the Respondent:

Stevens Law

ORDERS

ADC 332 of 2012

BETWEEN:

MR NEGUS

Applicant

AND:

MS WEBB

Respondent

ORDER MADE BY:	JUDGE C KELLY
DATE OF ORDER:	15 MARCH 2021

THE COURT ORDERS THAT:

1.By consent paragraph 4(b) of the Orders of 20 July 2015 is varied such that the children X and Y both born in 2011 spend time with the father as follows:

(a)each week from the conclusion of school Tuesday (or 10.00am if a non school day) until the conclusion of school Wednesday (or 5.00pm);  and

(b)each alternate weekend from the conclusion of school Friday (or 12.00noon if a non school day) until the commencement of school Monday (or 12.00noon).

2.The father’s Application filed 16 October 2020 is otherwise dismissed on Rice & Asplund grounds.

3.All proceedings are otherwise dismissed as finalised.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

Judge C Kelly

These reasons were delivered orally and have been edited and corrected from transcript.  I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.

1. Can I begin by thanking Counsel for your written and oral submissions which were both helpful and concise.

   PRELIMINARY ISSUE

2. The Court is ask to rule upon a preliminary issue before determining the primary application before the Court.  The mother objects to the father relying upon four annexures to his Affidavit filed 1 February 2021.[1]  The father says that these documents are typed summaries of text messages that have passed between the parties at various times.  He says the information is relevant to the dispute before the Court and he seeks to rely upon them.

   [1] Father’s Affidavit filed 1 February 2021, Annexures “A – D”

3. The mother’s objection is well-founded in one sense.  Counsel for the mother, Mr Robinson, argued that the Court cannot possibly know who typed the documents, nor whether the transcription is accurate.  This alone creates uncertainty as to the reliability of the material in the annexures. 

4. Counsel for the father, Ms Dickson SC, responded by arguing that the first question should be whether the mother concedes the accuracy of the transcripts, but with due respect, that cannot be correct.  It must surely be for the party seeking to rely upon the transcripts to demonstrate the reliability of the transcription, before the other party should be expected to concede that the transcript is accurate, or not. 

5. Regarding the text exchanges generally, the mother has conceded that there was a period of time in recent years when the parties were able to co-operate in their parenting.[2]  For example, she acknowledges that the father was helping her by dropping the children to school on some mornings.  At other times she was helping the father by looking after the children on weekends, as he does not have a family network here to assist him in that regard.  She further acknowledged that they would sometimes swap the nights that the children were in each parent’s care.

   [2] Mother’s Affidavit filed 10 December 2020

6. The mother raises a number of other complaints about the father, however.  For example she says that his decision to enrol the children in various extracurricular activities meant that he was sometimes collecting them on school nights whilst the children were actually in her care.  Leaving that to one side, the mother acknowledged the father did assist her with childcare and that the parties negotiated these arrangements. 

7. I take on board Mr Robinson’s objections, however, nothing turns on this issue at the end of the day.  Ultimately, I accept Ms Dickson’s submission that the status of the annexures goes to the question of weight, rather than admissibility.  I decline to strike out the annexures to the father’s Affidavit of 1 February 2021.

   RICE & ASPLUND/SUMMARY DISMISSAL

8. This hearing is to determine the mother’s application for the father’s Initiating Application to be summarily dismissed,[3] or otherwise dismissed on Rice & Asplund grounds,[4] which is shorthand for the well-understood principle that repeated and ongoing litigation is not in children’s best interests. 

   [3] Federal Circuit Court Rules 2001 Rule 13.10

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

9. Mr Robinson referred to the relevant paragraphs from Rice & Asplund where the Full Court held that the Court should not lightly entertain an application to reverse an earlier custody order unless there was some changed circumstance or new factor that would justify such a step.[5]

   [5] Ibid, page 78-905

10. As with every parenting application, whether it is in consideration of an application brought on Rice & Asplund grounds or any other parenting issue, the Court’s obligation is to make orders that are in the best interests of the children.[6]  Ms Dickson QC referred the Court to the subsequent authorities such as SPS & PLS,[7] King & Finneran[8], and Marsden & Winch[9] which emphasise that the “rule” in Rice & Asplund is simply a shorthand statement of one aspect of the best interest principles, summarised so neatly by Chief Justice Evatt, to the effect that ongoing litigation is very rarely in the best interests of children.

    [6] S60CA

    [7] SPS & PLS [2008] FamCAFC 16

    [8] King & Finneran [2001] FamCA 344

    [9] Marsden & Winch [2011] FamCA 369

11. Ms Dickson QC again reminds the Court that if summary dismissal is being sought at a preliminary stage, as here, then the Court should take the father’s case at its highest.  The father’s application seeks to vary the parenting orders pronounced 20 July 2015.  Those orders provided a progressive parenting regime for X and Y.  Now that the children have commenced school, they spend time with their father overnight each Tuesday and each alternate weekend from the conclusion of school Friday until 5pm Sunday.  The orders provide that the children also spend week-about time with each parent during the school holiday periods, including the Christmas school holidays and also deal with a range of other parenting issues that are not relevant to this application. 

12. When considering the background it is significant to remember that the first round of proceedings commenced with the mother’s Initiating Application filed 30 January 2012, seeking orders for delivery up of X and Y.  The parties then had the benefit of a Child Dispute Conference with a Family Consultant in February 2012 and eventually final orders were pronounced by consent on 26 November 2012.  The orders provided for the parties to share equally in parental responsibility, and for the children to live with the mother.  The children’s time in the father’s care was to increase over the intervening years until the final tranche commenced in 2015, when the children were four years of age.  This represents the present parenting regime, by and large.

13. Notwithstanding those orders provided for a progressive regime where the children’s time with the father increased each year, the father saw fit to file a further Initiating Application on 11 September 2014 seeking to vary the 2012 orders.  He then filed an amended Application on 4 November 2014, seeking yet other parenting orders.  Those proceedings were finalised with consent Orders on 20 July 2015, in terms not dissimilar to the November 2012 Orders.  This is now the third round of parenting proceedings and the second parenting application initiated by the father. 

14. The Orders from 20 July 2015 continue in operation now.  They repeat the earlier 2012 orders to the extent that, upon X and Y turning four years of age in September 2015, the children would commence spending time in their father’s care each week from the conclusion of kindergarten or school Tuesday until the conclusion of kindergarten or school on Wednesday and on alternate weekends from the conclusion of school or 12 noon Friday until 5.00 pm Sunday. The previous school holiday and special occasion regime also remain in force.

15. The 2015 orders referred the parties to family dispute resolution, in the event they were unable to agree any parenting issues, prior to initiating any application in the Court.  To their credit, the parties were able to resolve issues in relation to schooling for the children during their 2015 litigation. This topic is also discussed by the parties in their current Affidavits.  

16. These present proceedings were initiated by the father on 16 October 2020.  He is now seeking orders for a shared care regime and proposes that X and Y live in his care two nights in week one, from Wednesday to Friday and for five nights in week two, from Tuesday to Sunday. He proposes that order continue implicitly, during school holidays.[10]    The mother seeks that the father’s Application be summarily dismissed on the principles set out in Rice & Asplund grounds, on the basis that ongoing litigation is not in the children’s best interests.  The father further proposed that a family assessment be prepared and Counsel submitted that this should be undertaken prior to determining the Rice & Asplund application.

    [10] I note that the father’s Initiating Application actually seeks to vary only Order 4(b) of the Orders pronounced 20 July 2015 and the remaining Orders otherwise continue, including school holiday arrangements

17. It is in that context that I have set out in some detail the previous history of litigation in relation to the care arrangements for Y and X. The proceedings commenced in 2012, when the children were just five months old. Here we are, yet again, faced with a third round of litigation, before the children have reached their tenth birthday. In that regard, of course, the relevance of a s.62G Family Report as a precursor to this litigation proceeding relates to the children’s best interests, and in particular, the relevant s.60CC considerations. The Court is also reminded of the legislative pathway laid down by well-known Full Court authorities such as Goode & Goode [2006] FamCA 1346, and the High Court decision in MRR & GR (2010) FLC 93-424.

18. The father says that he has been spending far more time with the children than provided for in the 2015 Orders.  He says that this was a regular arrangement over the intervening four years until March of this year, when the mother then insisted on strict compliance with the precise terms of the 2015 Orders.  From his perspective, he says that the parties’ parenting relationship had improved and that they were able to negotiate and communicate flexibly until March 2020, when communication again deteriorated.    

19. Given the mother’s change of attitude, the father says that he can no longer rely upon the mother returning to the previous flexible parenting regime.  He has filed this Application because it is in the best interests of the children to continue to spend additional time in his care and because he says the children want to spend more time in his care.

20. The mother acknowledges that the parties had been able to negotiate more flexibly over recent years.  She concedes as much in her Affidavit, but notes that the flexibility was a casual arrangement and not as regularised as the father claims. She further argues that it was as much for the father’s benefit as for hers, in terms of their work rosters and childcare.  Ultimately, however, the mother says that the father’s communication within that “parenting co-operation” became more demanding and irritating, to the point where his behaviour was distressing for her, and for the children. 

21. Eventually, given her work and parenting obligations, the children’s weekend commitments, and her need for some stability within her household routine, the mother says that she decided  the only way forward was to revert to the previous care arrangements, as set out in the 2015 Court orders. The mother argues that the father’s behaviour was also unsettling and disruptive for Y and X and this also lead her to “pull the plug” on negotiating with any regular flexibility. She says that the children were increasingly unsettled and did not enjoy spending additional time with their father.  That is not a matter that weighs in my determinations today however, bearing in mind the father says precisely the opposite.

22. As discussed earlier, when assessing a Rice & Asplund application as a preliminary threshold issue, the Court should consider the father’s case at its highest.  The father argues that the flexible parenting arrangement was working well for X and Y.  He says the children enjoyed spending more time with him and enjoyed the additional activities that they shared together.  He further argues that the parties were communicating sufficiently well to be able to negotiate a change of school and that nothing raised in the mother’s Affidavit should dissuade the Court from allowing his Application to proceed. 

23. The father says that the children want to spend additional time in his care, especially when he is able to facilitate their extracurricular activities in a way that sometimes the mother cannot. Ms Dickson QC further noted that the children are nearly ten years old, and the Court should be loath to dismiss the father’s application without at least obtaining some insight into their wishes, in accordance with s.60CC(3)(a).

24. Mr Robinson argues that is putting “the cart before the horse” and the Court should first determine the mother’s summary dismissal application, but I disagree.  It is not unusual for first instance judges, myself included, to delay ruling upon a Rice & Asplund or summary dismissal application, to ascertain the children’s wishes.   X and Y are in middle to upper primary school, an age where the weight to be placed on their views becomes more significant.  In my view, where appropriate, the Court can properly consider ordering some form of child-inclusive process, whether a report or a child-inclusive conference with a family consultant, before determining the Rice & Asplund application. 

25. In that regard, every case is determined on its own circumstances and it must always be remembered that the children’s views are only one of fourteen primary and additional considerations that I must assess in determining the children’s best interests.  For the reasons that follow, I conclude that the arguments in favour of obtaining the children’s views prior to considering the mother’s application for summary dismissal do not apply in this case.

26. I acknowledge that the father has an arguable case.  However, I also assess his application in the context of three rounds of litigation proceedings when the children are not yet ten years of age.  X and Y have truly spent the whole of their childhood under the glare of ongoing litigation.  The father commenced the second proceedings in 2014, seeking to vary the 2012 orders even before the progressive regime of increased time in his care had run its course.

27. The subsequent five years between the 2015 orders and this Application filed in 2020 is the longest period that X and Y have experienced without their parents being engaged in, and distracted by, Court litigation.  That is a very significant factor that weighs with me today.   It may be that the father is right and that, if interviewed, the children will both express strong views in favour of spending more extensive time in their father’s care.  That is only one of the relevant considerations, however.

28. I must also consider the other relevant considerations, including the co-parenting relationship.  I accept that the parties have been able to negotiate a range of parenting issues in recent years, but it is also clear from both parties’ Affidavits that the communication was not always smooth.  The mother says that she found it increasing difficult to interact with the father.  Far from finding their communication was co‑operative, she began to feel harassed and dictated to by the father.  Obviously this is the mother’s version of events.  

29. The father says it was the mother’s behaviour that created difficulties in their co-parenting dynamic.  In his most recent Affidavit the father says that:

    … I no longer accept telephone calls from the mother as she is often abusive, hangs up, is overly critical or is rude ...[11]

    He also alleges that the mother is often rude and aggressive towards him at handover.[12]  This indicates that the co-parenting dynamic between the parties is far from perfect, even on the father’s own version of events. 

    [11] Father’s Affidavit filed 1 February 2021, para 44

    [12] Ibid, para 26

    CONCLUSION

30. There is no doubt that both parents love X and Y deeply.  The children are very fortunate to have parents who are devoted to their welfare and who each provide such a positive role model in the children’s lives.  Both parties are attentive to the children’s day to day needs, support the children’s extracurricular activities and are loving and caring parents in every way. 

31. In the course of this litigation both parties have raised a range of criticisms and complaints about the other which are, frankly, minor criticisms in the overall scheme of things.  For example, the father says that Y complains about his mother’s behaviour, but his allegations reads very much as a child who is having “a bit of whinge” to dad about mum’s discipline – and the same applies with respect to the mother’s reports of the children’s complaints about the father. [13] 

    [13] For example, see father’s Affidavit filed15 October 2020, paras 32, 34; see mother’s Affidavit filed 10 October 2020, paras 33, 51

32. I remind the parties that s.60B focuses on the children’s right to maintain a meaningful relationship with both parents, not necessarily an optimal relationship – as discussed by Brown J in the 2008 decision, Mazorski and Albright.[14]  Sadly, I have no confidence that Mr Negus and Ms Webb are able to maintain a co-operative equal co-parenting relationship.  I acknowledge that the parties’ communication has been functional and effective at times over the last few years, when it suited them both, but both parties very easily fall into a pattern of criticism and hostility, as is clear from their affidavit material filed in these proceedings. 

    [14] Mazorski & Albright 2008) FamLR 518

33. It is disappointing that the parties are unable to maintain a more flexible parenting regime, but that is the reality.  I conclude that this is a matter where the benefit to the children in ending the litigation – and the opportunity for the parents to harangue and harass each other through litigation – is far and away the best outcome for Y and X.  The children may spend less time in their father’s care than he would like.  I accept that they may spend less time in his care than even X and Y themselves would like, but as discussed, their wishes are only one of many considerations that the Court must weigh up. 

1. The reality is that Y and X have a meaningful relationship with their father and spend substantial and significant time in his care.  He is actively involved in their lives – in their schooling, their extracurricular activities, their weekend activities and so on. The children clearly have a meaningful and loving relationship with both parents.  If the Court allows the litigation to go forward, the existing level of criticism from one parent to the other may well explode into the level of hostile parental warfare that is all too often seen in this Court, and that cannot be in the best interests of Y and X. 

2. Ongoing litigation would simply act as a distressing distraction from the parties’ primary responsibility as the children’s parents.  It would involve the parents in ongoing Court attendances and extensive legal costs, assuming both parties are paying their legal fees. As mentioned, the potential for the hostility to spiral up into outright warfare is high and that is not a risk I am prepared to take for X and Y.  What these children need is to experience their parents behaving politely and co-operatively, as they have been doing across recent years, rather than “slugging it out” in the Court. 

3. The father will be disappointed if he is spending less time with the children than was previously agreed between them – although I note the mother disputes his calculations in that regard. Nonetheless, the father’s disappointment, however real, does not mean that ongoing litigation is in the children’s best interests, going forward.  On the contrary, I conclude that would be the worst possible outcome for X and Y, as it has the potential to undermine their sense of trust in, and respect for, both parents.    

4. Accordingly I grant the mother’s application and dismiss the father’s Initiating Application, on Rice and Asplund grounds.

5. In light of this ruling, I invited the parties to stand the matter down for negotiations, in the hope that they may be able to negotiate some minor changes to their parenting regime. An obvious change, for example, is that the father takes the children to school on a Monday morning. 

6. The parties have done so and now ask the Court to make orders by consent varying Order 4(b) from the Orders pronounced on 20 July 2015.  I am satisfied the agreed amendments are in the children’s best interests and I now pronounce those orders today.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C Kelly.

Associate:

Dated:       30 June 2021