Albert & Plowman
[2022] FedCFamC1F 243
•13 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Albert & Plowman [2022] FedCFamC1F 243
File number(s): SYC 5837 of 2013 Judgment of: AUSTIN J Date of judgment: 13 April 2022 Catchwords: FAMILY LAW – CHILDREN – Rice v Asplund – Where final parenting orders were previously made which provided for the father to have sole parental responsibility, for the child to live with him and to spend substantial time with the mother – Where the mother now seeks to expand the time the child spends with her, extend the duration of telephone communication and alter orders regulating the manner in which she can obtain information about the child’s medical and educational progress – Where the father seeks dismissal of the mother’s application – Where the mother could not identify any material change in circumstances to support her application – Where the mother has not satisfied the criteria imposed by Rice v Asplund – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where the mother issued a subpoena to the child’s treating psychologist – Where the material was produced but the psychologist filed a Notice of Objection – Where the Notice of Objection was not listed for determination in conjunction with the threshold hearing – Where the mother made an oral application for the Notice of Objection to be listed and determined before the commencement of the threshold hearing – Where the subpoena was issued belatedly – Where the mother failed to demonstrate any legitimate forensic purpose in the subpoena – Oral application dismissed.
FAMILY LAW – COSTS – Where the mother’s application to vary the existing parenting orders was wholly unsuccessful – Mother to pay the father’s costs on a party/party sum – Costs ordered in a fixed sum.
Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13, 12.17
Cases cited: Albert & Plowman (No.2) [2018] FCCA 3579
Alister v The Queen (1984) 154 CLR 404
Northern Territory v Sangare (2019) 265 CLR 164
Rice v Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
SPS & PLS (2008) FLC 93-363
Walden & Cooper [2020] FamCA 104
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 6 April 2022 Place: Newcastle (via video link) Solicitor for the Applicant: Shiels Legal Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: Croydon Legal & Conveyancing ORDERS
SYC 5837 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALBERT
Applicant
AND: MR PLOWMAN
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
13 APRIL 2022
THE COURT ORDERS THAT:
1.The Amended Initiating Application filed on 10 January 2022 is dismissed.
2.The Further Amended Response filed on 24 January 2022 is dismissed.
3.Any and all other outstanding applications under Part VII of the Family Law Act 1975 (Cth) are dismissed.
4.The applicant shall pay the respondent’s party/party costs of and incidental to the proceedings, fixed in the sum of $10,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Albert & Plowman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
The parties to these proceedings ended their romantic relationship in 2013 without ever marrying and have one child. He was born in 2013, just before the parties’ separation, and is now verging on nine years of age.
Litigation between the parties under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) was first commenced in October 2013. Those proceedings were concluded consensually in March 2016, with orders made for the parties to have equal shared parental responsibility for the child, for him to live with the mother, and for him to spend substantial time with the father.
More proceedings were commenced in October 2017 and were concluded in December 2018 after a trial. The orders discharged the March 2016 orders and, in their stead, provided for the father to have sole parental responsibility for the child, for the child to live with him, and for the child to spend substantial time with the mother, subject to her maintaining her residence within the Region K.
The mother appealed from those orders but the appeal was dismissed in February 2020.
The current proceedings were commenced by the mother in September 2021. She is principally seeking to expand the time the child is able to spend with her under the orders made in December 2018. The father opposes her application and seeks its dismissal. The father contends, but the mother denies, that the entertainment of her substantive application is precluded by the operation of the principle espoused in Rice v Asplund (1979) FLC 90-725.
They agreed the dispute should be heard as a threshold issue without any cross-examination. To that end, the hearing came to be listed for hearing before me on 6 April 2022.
Preliminary applications
On 14 March 2022, the mother issued a subpoena to the child’s treating psychologist seeking production of the child’s file. The psychologist answered the subpoena by producing the documents, but simultaneously filed a Notice of Objection on 25 March 2022 objecting to the parties’ access to the documents, which objection was not listed for determination on 6 April 2022 in conjunction with the threshold Rice v Asplund hearing.
Before the threshold hearing began, the mother’s lawyer made an oral application for me to immediately list the Notice of Objection before the Court and to determine it before proceeding with the threshold hearing. The mother’s lawyer anticipated that, if I would do so and if the Notice of Objection was then dismissed, the commencement of the threshold hearing would then be delayed until she had been able to inspect the documents released under the subpoena. As the hearing was being conducted electronically and the mother’s lawyer was not within Court premises, it was almost inevitable the threshold hearing could not then have been heard on the day it was listed and the hearing would necessarily be vacated. At very best, it would have entailed a delay of many hours.
The oral application to deal with the unlisted Notice of Objection and the imputed application to vacate the hearing were both dismissed with reasons to follow, which are these.
The mother commenced these proceedings six months ago in September 2021, but did not issue the subpoena until March 2022, and not until after the hearing date was fixed. The lateness of the subpoena and the perceived urgency of the need to deal with the objection to it were circumstances entirely of the mother’s own making.
The strength of the mother’s applications depended upon assumptions that the documents produced by the psychologist, if released for inspection over the objection, would vindicate her submissions that, first, the child’s behaviour has deteriorated since the last proceedings in 2018, and secondly, such deterioration can be correlated with the curtailment of the time spent by child with her since May 2019. As the mother’s lawyer was bound to accept once the hearing proceeded, the mother’s own evidence did not bear out such submissions in any event, so the misconceived assumptions deprived the applications of force.
The mother’s submissions about the potential relevance of the subject documents to the determination of the Rice v Asplund dispute distilled to nothing more than this: she hoped they would help, but would not know until allowed to inspect them. The subpoena was, in fact, an archetypal fishing expedition. She could not demonstrate any legitimate forensic purpose in the subpoena (Alister v The Queen (1984) 154 CLR 404 at 439).
Once established the subpoena was issued belatedly by the mother and had no proper forensic basis in any event, the absence of any need to delay commencement of the threshold hearing became obvious. That was particularly so when the matter was mentioned only 48 hours beforehand and this complicating issue was not even raised by the mother’s lawyers.
At the end of the hearing, the mother opposed any costs order being made against her if her substantive application fails, as she is impecunious. It must follow then that she would not have acceded to any costs order in the father’s favour for restitution of his costs thrown away by reason of the grant of her late adjournment application. The prejudice to the father caused by delay could not then have been assuaged by a consensual costs order.
The mother’s application
The mother moved on her Amended Initiating Application filed on 10 January 2022.
In effect, she seeks to:
(a)have the child spend two extra nights with her each fortnight, thereby expanding the current regime from five nights per fortnight to an equal time arrangement of seven composite nights per fortnight (Order 2);
(b)discharge the existing order requiring her to remain resident in the Region K as a pre-condition to the child spending midweek time with her during school terms and to instead permit the child to spend time with her in either the Region K or the Suburb C region (Orders 3 and 7);
(c)change slightly the existing arrangements for the child’s electronic communication with her (Orders 4 and 5); and
(d)change slightly the existing orders regulating the manner in which she can communicate with and obtain information from third parties about the child’s medical and educational progress (Orders 8 and 9).
By his Further Amended Response filed on 24 January 2022, the father merely seeks the dismissal of the mother’s application.
Subject to the outcome being as they respectively propose, both parties sought an indemnity costs order against the other.
The evidence
The mother relied upon:
(a)her two affidavits filed on 11 January 2022 and 5 April 2022 (including annexures); and
(b)the affidavits of the maternal grandparents filed on 11 January 2022.
The mother also initially sought to rely upon the report of the single expert dated 29 September 2018, but sensibly resiled from that position. The expert report was adduced in evidence at the last trial in October 2018, but the overall evidence of the single expert comprised that within his report together with the oral evidence he gave in cross-examination at trial. The parts of the evidence given by the single expert upon which the trial judge relied is evident from the reasons for judgment delivered in December 2018 (Albert & Plowman (No.2) [2018] FCCA 3579). It would not be appropriate for the mother to rely, in these proceedings, upon any portion of the single expert’s evidence not expressly adopted by the trial judge as the premise for the December 2018 orders. She conceded that to be so.
The father relied upon his affidavit filed on 28 March 2022.
Neither party was cross-examined.
There were no exhibits.
Legal principles
In Walden & Cooper [2020] FamCA 104, I set out the relevant legal principles in this way:
9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
11.In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):
(a)the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(c)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.
I adopt that statement of the law for present purposes.
Since the parties were not cross-examined on the evidence they adduced, the threshold dispute is determined by accepting the mother’s untested evidence at its highest (SPS & PLS at [81]; Searson & Searson (2017) FLC 93-788 at [11]), unless it is inherently unreliable.
Disposition
When pressed to identify the material changes in circumstances which had occurred since the orders were last made in December 2018, warranting the revision of those former orders in accordance with Rice v Asplund, the mother’s lawyer struggled to do so.
The material changes were summarised to be these: the mother’s move away from the Region K; the child now spends less time with the maternal grandparents than before; and the child’s behaviour has deteriorated, which deterioration is caused by him spending less time with the mother.
In reality, the only material change is that the mother no longer lives in the Region K. She moved from the Region K to the M region in May 2019, being much further away from the child’s residence and school. As a consequence, in reliance upon Order 7, the father suspended the child’s midweek visits with the mother during school terms, confining them then to visits on alternate weekends, during school holidays and on other special occasions. Order 7 was obviously made to avoid the child having to endure lengthy travel time between the parties’ residences and school, when exchanged during school weeks.
The mother’s original residence in the Region K was about 40–45 minutes driving time from the child’s school. While her current residence is now much further away from the child’s residence and school, the mother proposes that the child spend midweek time with her at the home of the maternal grandparents in the Suburb C region, which is only about 10–15 minutes driving time from the child’s school.
Significantly, however, the mother seemed not to have considered three points.
First, the change of her place of residence, and in particular her choice to live further away from the child, was entirely voluntary. She deposed it was a financial necessity for her to sell her home in the Region K, but she was not then forced to live beyond the Region K. She chose to do so because she wanted to live with her partner in the M district. Before the last trial, the mother was proposing that she and the child move from the Region K to the M region, but she abandoned that proposal and contended she would remain in the Region K. Plainly, the trial judge imputed she might change her mind again if the child instead lives with the father. So, while the mother’s change of residence in May 2019 was indeed a change, the possibility of the change was foreseen at the time of the last trial in late 2018 and the orders were crafted to take account of it.
Secondly, there is no evidence the location of the maternal grandparents’ residence has changed since the orders were made in December 2018. If they live where they have always lived then there is no change in circumstances on that account. The maternal grandparents have always been available to assist the mother, so there is no change on that account either. They participated as witnesses for the mother in the litigation concluded by the orders made in December 2018 (reasons at [69], [171] and [182]). The maternal grandparents are again witnesses for the mother and she submitted in her Case Outline document:
The mother is supported in her care for [the child] by her partner [name] and [the child’s] maternal grandparents
The trial judge found the December 2018 orders provided “ample opportunities” for the child to maintain his loving relationships with the maternal grandparents (at [188]).
Thirdly, the mother does not merely want to re-instate the child’s midweek time with her, for which the December 2018 orders already provide, but rather to increase the frequency of such re-instated midweek time from fortnightly to weekly cycles. No change of circumstances was advanced to explain that proposed amendment. It may be the child has told the mother he would like to spend more time with her than is presently occurring, as the mother deposed, but neither his yearning nor his increased age amount to material changes in circumstances.
The mother submitted in her Case Outline document:
The mother asserts that the orders she seeks to re-instate mid-week time is not a change of circumstances for [the child] but a change back to what was the status quo prior to the mother’s relocation.
That submission is rejected as demonstrably incorrect, since her application is to increase the amount of time the child would spend with her to equal time. The orders of December 2018 do not envisage an equal time regime. The orders provide for the child to spend five nights per fortnight with the mother, reducing to three nights per fortnight if she relocates away from the Region K, as she subsequently did.
In respect of the order concerning telephone communication, the mother wants to change one of the two nights on which it currently occurs and to expand the duration of each call from 60 to 90 minutes. No change in circumstances was advanced to explain the expanded duration of the calls. The mother complained the father had made telephone communication “difficult” but, if that is so, the difficulty is addressed by enforcing the existing orders. It is not entirely logical to apply to extend the duration of telephone calls which are said to already be “difficult”, as that might only accentuate the difficulty.
The only obvious reason for changing the midweek night for the telephone calls is to accommodate the child’s anticipated resumption of spending midweek time in the mother’s care. But if that does not happen then no change of circumstances is advanced to warrant any change to the existing telephone communication orders. This proposal was not addressed in the oral submissions, so little else can be said.
To support her proposal for an alteration of the orders regulating the manner in which she may communicate with and obtain information from third parties about the child’s medical and educational progress, the evidence advanced by the mother is her allegation the father’s lawyers have informed her she does not have “authority to liaise with these organisations or professionals directly” and that the father “does not reliably provide [her] with necessary information or updates”. Nor was this proposal addressed in the oral submissions. As to the first part of the complaint, Order 16 enables the mother to contact medical providers and educational authorities directly, but Order 17 makes such entitlement conditional upon her courtesy when doing so. As to the second part of the complaint, it is a problem best solved by enforcement rather than amendment of the existing orders.
The mother deposed that the child’s “needs changed” when he was diagnosed with a medical condition L in May 2019, but that is not a proper characterisation of the situation. The diagnosis merely provided a label to explain the child’s disposition, which the mother deposed had been problematic for three years, but it did not change his needs in any identifiable way. The trial judge in December 2018 repeatedly referred to the child’s special needs and his problematic behaviour (reasons at [18], [47], [59], [61], [73], [81], [86] and [191]). While the honesty of the mother’s belief is not doubted, objectively, the more likely characterisation of the child’s behaviour is that it is more of the same and not materially different. To so conclude does not amount to improper rejection of the mother’s untested evidence. Rather, her opinion on that topic is inherently unreliable when compared to the findings made by the trial judge. Even on the evidence adduced by the mother, there was no rational correlation between the asserted deterioration in the child’s behaviour and the reduction in the time he spends with her.
The mother’s concern that the child’s behaviour is not being “adequately addressed or supervised” by the father represents no change in circumstances. The parties have always been doubtful of one another’s parenting capacity. Their inability to co-operate is why sole parental responsibility was allocated to the father by the trial judge in in December 2018 (reasons at [59]–[60], [78]–[82], [86], [173]–[175], [183] and [197]–[198]).
Similarly, the mother’s “grave concerns” about what the child is “being exposed to whilst in the [father’s] care” does not represent any change in circumstances. It is merely repetition of her suspicions about the father’s impaired parenting capacity, which were exposed in the last proceedings. With some justification, the father’s lawyer contended that the “deep-seated hatred” formerly found to exist between the parties (reasons at [46] and [173]–[174]) is still present and would likely be evident to the child if the parenting proceedings were re-opened, which powerfully militates in favour of his best interests being promoted by the dismissal of the mother’s application, since the parties’ conflict was previously found to have adversely affected the child (reasons at [86] and [174]).
It is unnecessary to address the irony of the submission in the mother’s Case Outline document that the orders she now proposes in these new proceedings, commenced by her, “are likely to be orders which will not lead to further proceedings”.
The mother’s application to vary the existing parenting orders is dismissed. She cannot demonstrate any material change in circumstances and, if the parties are allowed to resume their litigious struggle, there is a real danger the child will experience more emotional trauma from exposure to their disaffection. The mother has not satisfied the criteria imposed by Rice v Asplund to permit her prosecution of these fresh proceedings. Her fresh parenting application must be dismissed.
Costs
The mother’s application has been wholly unsuccessful. The father sought an order for the mother to pay his party/party costs on that account. He abandoned his application for indemnity costs, necessitated in part by his failure to comply with r 12.13(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The mother resisted any costs order, but only because of her professed poor financial circumstances. However, aside from deposing she is unemployed, the mother gave no evidence of her assets and liabilities. It should not be overlooked that she instigated the costs dispute by seeking an indemnity costs order against the father in her Amended Initiating Application. It was her choice then not to adduce any evidence to vindicate her contention of impecuniosity, either in support of her own prospective claim for costs or in defence of the father’s prospective claim for costs, which he foreshadowed in his Further Amended Response.
The mother deposed she and her partner are in the process of acquiring joint legal title in a parcel of real property. It must follow that she will imminently have some equity in that asset. Moreover, she instructed solicitors to represent her in these proceedings. It was not contended such solicitors were acting pro bono, in which case she must have some asset or financial resource available which she expects to use to meet their fees. In any event, impecuniosity is not an unconditional shield against a costs order (Northern Territory v Sangare (2019) 265 CLR 164 at [27]).
Not only was the mother’s application wholly unsuccessful, it was brought on a fragile basis following two earlier sets of first-instance proceedings and an unsuccessful appeal. In truth, the application should not have been brought. It was not so egregious to warrant indemnity costs, but its lack of merit was sufficiently foreseeable that the father should be recompensed for his reasonable party/party costs in defending it.
The father’s indemnity costs were said to amount to some $24,000, but his party/party costs were not quantified. The parties acknowledged it would be appropriate to resort to r 12.17(1)(a) of the Rules to fix a proper sum for party/party costs to avoid the further cost and inconvenience of a costs assessment.
The proceedings have been on foot for just over six months. There have been numerous interlocutory appearances and a surprising number of documents filed in readiness for the threshold hearing. The father’s party/party costs are assessed at $10,000.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 13 April 2022
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