Baisman & Cartmill

Case [2022] FedCFamC1A 36

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Baisman & Cartmill [2022] FedCFamC1A 36

Appeal from: Baisman & Cartmill [2021] FedCFamC2F 159
Appeal number(s): NAA 41 of 2021
File number(s): NCC 954 of 2021
Judgment of: TREE J
Date of judgment: 15 March 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – COSTS – Appeal from an order dismissing an Initiating Application and a costs order – Relevant principles of the rule in Rice and Asplund (1979) FLC 90-725 – Whether the primary judge erred in the application of the rule – Discretionary judgment – Weight challenges – Procedural fairness – Where appellate intervention in relation to costs orders is only mandated if there is either obvious injustice or wrong application of principle – No error established – Appeal dismissed – Appellant to pay costs of respondent in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 69ZQ, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited:

Beck and Beck (2004) FLC 93-181; [2004] FamCA 92

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

House v The King (1936) 55 CLR 499; [1936] HCA 40

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5

Stasiuk & Guild [2021] FamCAFC 62

Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Number of paragraphs: 59
Date of hearing: 24 February 2022
Place: Cairns (via video link)
Counsel for the Appellant: Mr Tredrea
Solicitor for the Appellant: Cifuentes Lawyers
Counsel for the Respondent: Mr Willoughby
Solicitor for the Respondent: Joplin Lawyers

ORDERS

NAA 41 of 2021
NCC 954 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR BAISMAN

Appellant
AND:

MS CARTMILL

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

15 MARCH 2022

THE COURT ORDERS THAT:

1.The Notice of Appeal filed 18 October 2021 is dismissed.

2.Within 28 days the appellant pay the respondent’s costs 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 Baisman & Cartmill has been approved pursuant…

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Details
AGLC
Baisman & Cartmill [2022] FedCFamC1A 36
Case
[2022] FedCFamC1A 36
Decision Date

CaseChat Overview and Summary

In this case, Mr Baisman appeals against a decision of the Federal Circuit Court dismissing his Initiating Application seeking to revisit consent orders concerning the care, welfare, and development of his two children, X and Y, with Ms Cartmill. The original orders were made on 11 April 2019, following the separation of the parties. The orders provided that the mother have sole parental responsibility for both children, who would live with her and spend no time with the father. The father sought to revisit those orders, seeking equal shared parental responsibility for the children, and that the orders effecting a prohibition on him spending time with the children, and imposing restraints on his communication with them, be discharged. The mother sought that the father’s Initiating Application be dismissed, both on a final and interim basis. The primary judge dismissed the application and made orders in relation to costs.

The court was required to determine whether the primary judge erred in applying the rule in Rice & Asplund and whether there was a substantial or significant change in circumstances justifying a revisitation of the consent orders. The court was also required to determine whether the primary judge erred in his assessment of the father’s case and whether he applied the correct legal principles in making his decision.

The court found that the primary judge did not err in applying the rule in Rice & Asplund. The court noted that the father did not object to the mother relying upon her affidavit, despite the fact that it contained material that was contrary to his case. The court also found that the primary judge did not err in his assessment of the father’s case, and that he applied the correct legal principles in making his decision. The court found that there was no substantial or significant change in circumstances justifying a revisitation of the consent orders.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs in the sum of $10,000. The court noted that appellate intervention in relation to costs orders is only mandated if there is either obvious injustice or wrong application of principle. In this case, the court found that neither of these criteria was met.

Orders

Orders of the court

NAA 41 of 2021

NCC 954 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BAISMAN

Appellant

AND:

MS CARTMILL

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

15 MARCH 2022

THE COURT ORDERS THAT:

1. The Notice of Appeal filed 18 October 2021 is dismissed.

2. Within 28 days the appellant pay the respondent’s costs 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.

Background

Background to the litigation

For the reasons which follow, the appeal will be dismissed.BACKGROUND The father is presently 42 years of age and a scientist by profession. The mother is presently 39 years of age and an educator by profession. They commenced a relationship in 2000 and finally separated on 4 January 2018. Two children were born to the relationship, X, who is presently 16 years of age, and Y, who is presently 10 years of age (“the children”). It was not in dispute before the primary judge that the parties’ relationship was marred by family violence, including the father on a number of occasions breaching apprehended violence orders which protected the wife, to the point where he had been given a suspended jail sentence. Likewise it was not in dispute that the father has been diagnosed with borderline personality disorder. On a date which is unclear on the material, the mother commenced parenting and property proceedings, both of which were concluded by the 11 April 2019 consent orders. Relevant to this appeal, those orders provided that the mother have sole parental responsibility for both children, who would live with her and spend no time with the father. However both children were at liberty to telephone the father for 30 minutes once a week, save that the calls were to be on loud speaker and could be terminated by the mother if inappropriate conversation occurred. There were further orders permitting the father to send letters, emails, gifts and cards to the children, save again that the mother had the right to review any such material prior to it being provided to the children. By Initiating Application filed 25 March 2021, the father sought to significantly revisit those consent orders, and particularly sought orders that the parties have equal shared parental responsibility for the children, and that the orders effecting a prohibition on him spending time with the children, and imposing restraints on his communication with them, be discharged on both a final and interim basis. Whilst not articulating any final parenting orders other than equal shared parental responsibility, on an interim basis the father sought orders for a Child Inclusive Conference, for the preparation of a Family Report, and for the children to travel from City A to spend (unsupervised) blocks of time with him in City B during their school holidays. He further sought that he be at liberty to provide the children with a mobile phone to facilitate communication between them. By her Response filed 4 June 2021, the mother sought that the father’s Initiating Application be dismissed, both on a final and interim basis. The basis for her seeking at least the interim dismissal was in reliance upon the so-called “rule in Rice & Asplund.” On 7 June 2021, a Federal Circuit Court judge made an order listing the matter for hearing “as to whether the Initiating Application filed 25 March 2021 should be dismissed pursuant to the rule in Rice & Asplund”. It was pursuant to that order that the primary judge heard the matter on 20 September 2021, at the conclusion of which he dismissed it for reasons then given orally, and further, made orders in relation to costs, again with reasons given ex tempore.

Evidence

Evidence Before The Court

His Honour summarised his conclusion at [87] as follows:87.There is no substantial or significant change in circumstance. The harm that was present in April 2019 may be ameliorated perhaps by some of what the father’s clinical psychologist has done. But on the evidence before me, it remains at an unacceptable level, and it is clear to me that the father has engaged in it over a long time and at a time when he was consenting to orders that it looks as though he had no intention of in fact ever abiding by himself.(Bold emphasis added) A significant matter is that whilst the father’s initial affidavit in support of his application did not disclose the “back channel” communications with X, once confronted with them in the mother’s material, he implicitly accepted them and certainly did not dispute them (father’s affidavit filed 20 August 2021, paragraphs 23 and 24). In other words, the material that was contrary to the father’s case in the mother’s affidavits was uncontroversial in the hearing before the primary judge. In his Case Outline filed 16 September 2021 in the proceedings before the primary judge, counsel for the father pointed to two matters which he said comprised the change in circumstance which justified the revisitation of the consent orders. The first was “the evidence of the significant improvement in [the father’s] mental health and his continued commitment to psychological treatment” (at paragraph 6). The second was “his stable relationship with his new wife” (at paragraph 7). That latter point was not emphasised during the oral submissions, although it was further contended that there had been an improvement in the father’s general circumstances since the consent orders, including that some convictions for assault had been set aside, the AVO proceedings had resolved, and the father was now employed. Perplexingly, given the challenge now made by Ground 1, there was no objection made by counsel for the father before the primary judge to the mother relying upon her affidavit. If it was his contention then that the primary judge was obliged to accept his case at its highest, then his failure to object to the admission of that evidence is difficult to comprehend. If it was his contention that the test to be applied was that derived from summary dismissal under r 10.09(1)(d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), namely that his Initiating Application enjoyed no reasonable likelihood of success, then given what the Full Court said in Beck and Beck (2004) FLC 93-181 at [20]–[21], the failure to object is impossible to understand. Whilst it is true that the application of the rule in Rice & Asplund can be invoked at various stages in a proceeding, with or without cross-examination, the fact is that before the primary judge, neither party contended that his Honour was restricted as to what material he could have regard to, nor did either party seek to cross-examine any witnesses. Further, then counsel for the father did not make any submissions in respect of the matters now complained of by Ground 1. Parties are bound by the way in which they conduct their case at first instance (Metwally v University of Wollongong (1985) 60 ALR 68). Appeals are not a means to remedy tactical errors or inadvertence at first instance.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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