NOWELL and NOWELL

[2015] FCWAM 123

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: NOWELL and NOWELL [2015] FCWAM 123

CORAM: KAESER M

HEARD: 10 JUNE 2015

DELIVERED : 23 JUNE 2015

FILE NO/S: PTW 262 of 2011

BETWEEN: MS NOWELL

Applicant

AND

MR NOWELL
Respondent

Catchwords:

Rule in Rice v Asplund; final orders made 2012 after contested trial; fresh parenting application by mother; insufficient evidence; 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: Self Represented Litigant

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

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

Carriel & Lendrum (2015) FLC 93-640

Cortes & Cabrera [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

Background

1On 20 January 2015 the wife filed a fresh Form 1 application seeking to revisit orders in relation to child welfare issues. By way of a response filed 4 March 2015, the husband seeks a range of parenting orders. At the hearing before me on 11 March 2015, I advised the parties who were both representing themselves, that I considered it appropriate to consider the principle or the rule in Rice & Asplund (1979) FLC 90-725 and therefore adjourned the proceedings. In order to assist the parties I provided each of them with a copy of Rice & Asplund by way of letter dated 16 March 2015. The hearing proceeded on 10 June 2015. Despite seeking numerous orders, the father’s position at the hearing before me was clear; he did not seek to vary the current orders because, in the circumstances, his submission was that the mother’s application should be dismissed given that there was no sufficient change in circumstances. He accepted, upon my questioning, that he could not “have his cake and eat it too” by seeking to dismiss the mother’s application whilst proceeding with his own.

2The earlier proceedings started by the wife filing a Form 1 application on 5 August 2010. The husband’s response was filed on 4 October 2010 and the wife amended her application on 29 November 2011. Those proceedings were finalised by way of a trial that took place over four days in July and August 2012. Her Honour Boland AJ delivered judgment on 28 November 2012.

3In summary, her Honour ordered that the father have sole parental responsibility for the children, [Child A] born [in] 1997, [Child B] born [in] 1998 and [Child C] born [in] 2002. Her Honour also ordered that the children attend on a counsellor at Relationships Australia in order to explain the reasons for the orders made and the effect of the orders. The children were then to attend a supervised visit with the mother at Relationships Australia “for the purpose of the applicant apologising to the children about events occurring at the time of the parties’ separation”. Any further time between Child A and Child B and the mother were to be in accordance with their wishes. Subject to compliance with earlier orders, Child C was to spend time with the mother for not less than two hours each alternate week on either a Saturday or Sunday for six months and, following compliance with that time, the time was to be extended. The mother’s time with Child C was conditional upon or subject to various other things happening. Just over two years later the wife filed her fresh application. It seeks a number of orders on a final basis, some of which are entirely inappropriate:

1.To have access to my youngest child – [Child C] – by way of regular Visitation [sic].

2.To have full access to the children’s schools – when the children are at school – where necessary.

3.To be informed when the children’s circumstances change; go on holidays – overseas; change schools; move house – up until the age of 18 years.

4.To have counselling set up with [Child C] – with a court registered child therapist – all costs paid by the father.

5.If the mother cannot see any of her children – owing to the father and his family estrangement of her; I should like these orders to be put in place;

…

8.The children to have full access to all the Court Records once they attain the age of 18 years – the Court Records will be made available to the children should they wish to access them within their lifetimes.

9.The father, [Mr Nowell], to write a detailed Rational [sic] to explain to the mother why he believes that the mother should have no involvement in the children’s lives – This Rationale will be stored in the Court Records.

10.[Mr Nowell Snr] (the father of [Mr Nowell]) and [Mrs N Nowell] (the mother of [Mr Nowell]) to write a detailed Rational [sic] to explain to the mother why they believe that the mother should have no involvement in the children’s lives. This Rationale will be stored in the Court Records.

11.[Mrs F Nowell] (the sister of [Mr Nowell]) to write a detailed Rational [sic] to explain to the mother why she believes that the mother should have no involvement in the children’s lives. The Rationale will be stored in the Court Reords [sic].

4It should be obvious that the Court has no intention of making any orders that provide for the father, his parents or his sister to write any type of explanation to the mother. As this matter went to trial and various affidavits were relied upon, it was the Court’s decision that imposed the various orders referred to above and there is no reasonable purpose in requiring either the father or any other third parties to explain their position to the mother. Their positions should be well and truly clear in previous affidavit material.

5Each party relied upon a case information affidavit and were provided an opportunity to make submissions to the Court at the hearing on 10 June 2015, noting that they had previously received a copy of the decision in Rice & Asplund. With no disrespect intended to either party, neither made any significant submission and effectively relied on their material. The record of proceedings will show that the proceedings lasted approximately 12 minutes. Notwithstanding that, this Court has an obligation to carefully consider the evidence and the circumstances of this case as to whether there has been a change in circumstances that is sufficient to justify re‑litigating over similar issues and putting the parties and the children through further Court proceedings.

The law

6This matter involves a consideration of the “rule” in Rice & Asplund. 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.

7It 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.

8I am satisfied in this case that the principle should be decided on a preliminary basis.

9The 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.

10In 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.

11The 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).

12In 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 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.

13In those circumstances the appeal by the mother was dismissed.

14These 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 Cortes & Cabrera [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.

15His Honour referred to the above-mentioned quote by Warnick J in SPS & PLS.

The facts of this case

16It is clear, given the above, that I must take the mother’s evidence at its highest in order to determine on a preliminary basis whether she should be allowed to continue with her application. It should be remembered that the two eldest children are 18 and 16 respectively, and in any event, the mother only seeks orders in relation to the youngest child, Child C, who is currently 13 years old.

17The changes in circumstances alleged by the mother appear to be as follows:

1.That the father has breached the Court orders on regular occasions since they were made or that the orders have not been successful in ensuring that any of the children have an ongoing relationship with her.

2.She says that “all attempts of supervised access have failed”.

18It is necessary to refer to the reasons for decision of Boland AJ to see whether these issues were before the Court at the time and whether anything has changed significantly since. Whilst I have taken into account the entire reasons for decision comprising 35 pages, I highlight the following:

[3] It is not in dispute that the mother’s contact to the children was suspended as a result of interim orders made on 23 May 2011, and that she has not seen the children since that date. [Child A] and [Child B] have told the single expert appointed in this matter that they do not wish to spend any time with their mother, at least for the present time. [Child C] has also expressed a view along similar lines to those of his elder brothers.

[4] It is the mother’s case that the children are estranged from her because of the father and his parents’ conduct. [I have ignored the various statements of the views of the elder two children as they are not referred to in the mother’s application before the Court.]

[49] Ms Johnstone explained that [Child C] was aged 9 at the time of the interview and that he presented as a polite, albeit slightly nervous child when being interviewed. [Child C] confirmed that he had written matters about the mother on a piece of paper because it was [Child A’s] idea. [Child C] was noted to express the view he was confused and sad when his mother left, although he went on to say he did not miss the mother after she left, or even before she left. Like his brothers, [Child C] expressed the view he liked living with them and he would like to live with them and their father.

[57] Ms Johnstone also commented on drawings done by the children. She noted that they disclosed “underlying feelings of anger and aggression”. She noted that when the children were asked to draw a family picture, they asked if they had to include the mother and that only [Child C] included a mother figure in his drawing. Ms Johnstone noted the children could only relate positive aspects of their father’s parenting and were unable to identify any positive traits of their mother.

19At [64] her Honour noted that the single expert recommended that:

while residing with their father, there should be a reunification of the children to reside with their mother in a shared care basis with review by the Court in the near future. In order to facilitate reunification with the mother, Ms Johnstone recommended individual counselling and a parenting course for the mother, and for time to be spent with her in a “parent [semble Children’s] contact centre once a week for one year, and be engaged in family therapy with their mother.

20At [65]:

In support of her recommendation for supervised time with the mother, Ms Johnstone opined “There is a high possibility that the children would resist the contact, however, if contact was stipulated as court orders, the children may hopefully realize that their mother had persisted in her effort to maintain contact with them only for one reason is that she loves them” (updating report page 14) [emphasis added].

21At [69] her Honour noted that:

Ms Johnstone was extensively cross-examined by both parties.

22At [72] her Honour said:

As I will more fully discuss later in these reasons, I found the opinions expressed by Ms Johnstone generally accorded with my assessment of the parties, albeit I had some reservations about her conclusions about the father displaying passive personality traits. I also had some difficulty with her apparently conflicting evidence about the father’s ability to meet the children’s emotional needs. Otherwise, I accept the general thrust of her recommendations as soundly based.

23At [89] a social worker, Ms Thorpe:

opined that constant denigration of the mother by the father had caused the children to form an alliance with the father. I accept that opinion. It is well supported on the evidence before me which I will later discuss.

24At [94]:

[Child C’s] views are, in some ways, less complex than those of his brothers. He was much younger when the parties separated, then being only 7 years old, and in the views he expressed to Ms Thorpe not long after the parties’ separation he was noted as really missing aspects of the mother’s care, including reading stories at night. I find that [Child C] has been significantly influenced by his older brothers, and the wishes expressed by him reflect their views.

25At [96]:

Having regard to [Child C’s] age at the date of the parties’ separation, the interaction between his parents since that date, together with the influence of his older brothers, means I can place little weight on [Child C’s] expressed views.

26At [104], her Honour noted that:

It is the mother’s case that the father and his parents have, both consciously and unconsciously, alienated the children from her.

27At [112]:

I was left in no doubt that [Mr Nowell] has no respect for the mother, that he holds her in contempt, and he would not take any steps to facilitate the restoration of the children’s relationship with her.

28At [114]:

Although the mother’s application is for a final order for equal shared parental responsibility, and ultimately a shared care arrangement, at the conclusion of the hearing she [the mother] acknowledged the difficulties with such a proposal. She realistically acknowledged that, without therapy, it is highly unlikely that her relationship with the children can be re‑established. She did, however, most appropriately acknowledge that she wanted to apologise to the children for her actions at the time of the parties’ separation. I find that it is a commendable concession on her behalf.

29At [118]:

I am conscious that many of the children’s perceptions about the mother relate to the unfortunate and badly handled separation of the parties, and the children’s perception that they were abandoned by their mother. I find the mother’s actions at separation were not child focused but self-centred. I accept she now acknowledges and regrets the manner in which she left the matrimonial home.

30At [119]:

I am satisfied there is much common sense in Ms Johnstone’s view that the children should have the benefit of some counselling, and at least one supervised visit with the mother after such counselling so that the mother may apologise to the children.

31At [120]:

I am satisfied if, after such counselling as may be arranged through Relationships Australia and one supervised visit, [Child A] and [Child B] resist further seeing their mother at this time, then they should not be compelled to do so but should have the opportunity at any time to contact the mother and spend time with her should they desire to do so.

32At [121]:

[Child C’s] position is a difficult one. On the one hand to make different arrangements for him may be traumatic for the child, particularly as he is so closely aligned with his older brothers. However, on balance, given his age, I am satisfied that he should have the opportunity of extended supervised visits with the mother, which should progress to unsupervised visits after a period of twelve months.

33At [122]:

… I am satisfied given [Child C’s] age and his state of development, that although a change to seeing his mother after a significant period of time will be a substantial change for him, it is one which is in his best interests [emphasis added].

34At [129]:

… I am satisfied the father has either, consciously or unconsciously, influenced the children to speak about their mother in a negative way, and has led them to believe the mother has behaved in a dishonest manner, for example, when they believed she was going to Margaret River but instead went to Bali as a result of a surprise trip organised for her. This type of behaviour, which has led to the alienation of the children from their mother, is not in their best interests.

35At [135] when speaking about the paternal grandmother, her Honour said:

I accept that she finds the mother’s tone of voice and some of her outbursts in the home, caused no doubt largely by the mother’s frustration about inappropriate arrangements to see the children, as aggressive. I am satisfied that she [the grandmother] has conveyed to the children a view that they were abandoned by the mother at separation.

36At [137]:

[Mr Nowell’s] evidence demonstrated little to suggest that he has the capacity to recognise the children’s need to have a balanced emotional development by maintaining a relationship with their mother. He clearly views the mother as having abandoned the children and lacking in sensitivity or love for them. He answered the mother’s questions, which were put politely to him in cross-examination by the mother, in an aggressive and vitriolic manner. I have a significant concern that he has the capacity to recognise and provide for the children’s emotional needs. His view is that he has a duty of care for the children, and that the mother left him with “a tremendous responsibility” rather than recognising the primary responsibility for the children lies with their parents.

37At [140]:

The mother’s actions on a number of occasions disclose that she has acted in an impulsive, and at times, aggressive manner. … On a number of occasions the mother has put her own needs before those of the children. She has, to her credit, acknowledged her inappropriate behaviour in leaving the matrimonial home, initially telling the father and the children she was going shopping, and not then returning for about eight days, or properly speaking to the children about the breakdown in the parties’ marriage when she collected some personal items from the matrimonial home.

38At [141]:

… She conceded readily in cross-examination that she was from time to time unreliable in arriving at a prearranged time to see the children, and her action in climbing the fence of the matrimonial home in order to gain entry to the house, while not illegal, did not demonstrate a capacity to recognise the detrimental effect of her actions on the children.

39At [192]:

By reason of [Child A] and [Child B’s] age and the strength of the views expressed by them, I am satisfied it would be counter-productive to order that these adolescents spend time with their mother. [Child C], who was less affected by the parties’ separation, has been heavily influenced by his older brothers [emphasis added]. It is likely with the benefit of family therapy that [Child C] will re-establish a meaningful relationship with his mother while continuing to have the security of full-time care by his father.

40In relation to the purported changes in circumstances, the mother provides very little information in her case information affidavit as to what breaches of the orders have allegedly been made. She makes bold statements such as “every Court order that has been made ‑ giving me access to the children has been breached”. She does not say whether the supervised visits or any of them have occurred with [Child C]. I note that the father in his case information affidavit says that:

Since the last supervised contact visit none of the [Nowell] siblings have spent significant time with [Ms Nowell] at their own request. They have seen [Ms Nowell] at school and public events. On each occasion [Ms Nowel] has exhibited the same challenging, confrontational, bullying and aggressive behaviours as recorded in numerous previous submissions to the Court, and as reported by the independent expert witness in both her reports delivered during trial.

41I do note it interesting and in accordance with her Honour’s findings that the father describes the mother as “[Ms Nowell]”. That infers that he considers she has no role to play in the children’s lives as their mother and is unable to refer to her as such. The abovementioned quote however at least infers that there has been more than one supervised contact visits, given the reference to the “last” one. Further in the affidavit the father says:

[Child C] attended several supervised visits with [Ms Nowell]. These did not flow well, and introduced significant stress into [Child C’s] life.

Conclusion in relation to Rice & Asplund

42Firstly, in my view, this is a clear case in which the Court should exercise its discretion in determining the Rice & Asplund principles on a preliminary basis.

43On balance, the state of the evidence before me is such that, whilst I am satisfied there is sufficient material for me to determine this matter on a preliminary basis, I am not satisfied that the evidence is such that I should allow this application to proceed. In my view, the presiding Judge dealt with a number of issues that are still being raised in the current set of proceedings. It seems that there was a significant degree of doubt attached to her Honour’s views about whether the supervision and therapy would work. In the circumstances that appear to have existed since those orders were made, it is clear that the supervision and/or the therapy have not worked in terms of rebuilding any of the children’s relationship with the mother. In my view, there is very little else the Court could reasonably do in the circumstances other than what was done at trial and pursuant to the reasons of her Honour. Given the extremely traumatic circumstances of the history of these proceedings, in particular of the effect of the proceedings and the parties’ actions on the children, it would be wholly against their best interests, and in this particular application against Child C’s best interests, to re‑litigate in relation to Child C’s relationship with the mother.

44Whilst I accept that the mother may view these conclusions as disheartening and perhaps unfair, I must do what I consider to be in these children’s best interests. Given the entire history of this matter I am not satisfied that there has been a change in circumstances sufficient to warrant re-litigating the issues in relation to Child C. I therefore propose to order that the proceedings currently before the Court be dismissed.

Orders

1.The Form 1 application filed on 20 January 2015 and the Form 1A response filed 4 March 2015 are dismissed.

I certify that the preceding [44] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary