Bronson and May (No.2) - [2017] FCCA 2317

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRONSON & MAY (No.2)

[2017] FCCA 2317

Catchwords:
FAMILY LAW – Final parenting orders made in 2015 providing for the father’s time with the children to be supervised or with a person in substantial attendance subject to agreement by the mother – final orders do not provide for a review mechanism of supervision arrangements – the father filed Initiating Application for new parenting orders – the mother seeks that the Initiating Application be dismissed on basis of Rice and Asplund principle – held that it is in the best interests of the children to allow litigation to re-commence.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Bronson & May [2015] FCCA 82

Carriel & Lendrum [2015] FamCAFC 43

Marsden & Winch [2009] FamCAFC 152

Miller v Harrington [2008] FamCAFC 150

Moose v Moose [2008] FLC 93-375

Poisat & Poisat [2014] FamCAFC 128

Rice and Asplund (1978) 6 Fam LR 570

Searson & Searson [2017] FamCAFC 119
Slater v Light [2013] FamCAFC 4
SPS & PLS [2008] FamCAFC 16

Applicant:

MR BRONSON

Respondent:

MS MAY

File Number:

DGC 2781 of 2011

Judgment of:

Judge Jones

Hearing date:

21 July 2017

Date of Last Submission:

21 July 2017

Delivered at:

Dandenong

Delivered on:

25 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr Stanley

Solicitors for the Applicant:

Kenna Law Barristers & Solicitors

Counsel for the Respondent:

Ms LaGreca of Pentana Stanton Lawyers

Solicitors for the Respondent:

Pentana Stanton Lawyers

ORDERS

The Mother’s application contained in her Response filed on 3 February 2017 to dismiss the Father’s Amended Initiating Application filed on 20 February 2017 be dismissed.
The proceedings are adjourned for mention on 7 December 2017 at 9.30am.

IT IS NOTED that publication of this judgment under the pseudonym Bronson & May (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2781 of 2011

MR BRONSON

Applicant

And

MS MAY

Respondent

REASONS FOR JUDGMENT

Introduction

On 16 January 2015, Judge Phipps made final orders (“the 2015 Final Orders”) in relation to the future parenting arrangements for the children X born (omitted) 2008 (“X”) and Y born (omitted) 2009 (“Y”) (collectively “the Children”). Their parents are Mr Bronson born (omitted) 1979 (“the Father”) and Ms May born (omitted) 1982 (“the Mother”).
The 2015 Final Orders provided relevantly for the purpose of this decision, that the Mother have sole parental responsibility for the Children, that the Children live with the Mother, and that the Father spend supervised time with the Children at a children’s contact centre nominated by the Mother, or the time be supervised by a person approved in writing by the Mother or by a person approved in writing by the Mother being in substantial attendance (“the Supervision Orders”).
The Supervision Orders provide as follows (Bronson & May [2015] FCCA 82) (“Bronson & May”):
4. That the children spend time with the [Father] as follows;
(a) if one is available,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bronson and May (No.2)

Details

AGLC: Bronson and May (No.2) [2017] FCCA 2317
Case: [2017] FCCA 2317
Decision Date: 25 September 2017

CaseChat Overview and Summary

In Bronson and May (No.2), Judge Jones considered an application by the Mother to dismiss the Father's Amended Initiating Application. The dispute concerned parenting orders.

The primary legal issue before the court was whether, when applying the principle established in *Rice and Asplund*, it is necessary to address in detail, or at all, the factors set out in section 60CC of the *Family Law Act 1975* (Cth) concerning a child's best interests. The court considered previous Full Court decisions, including *Carriel & Lendrum*, *Miller & Harrington*, and *Poisat & Poisat*, which indicated that while the best interests of the child remain paramount, the nature and extent of the consideration of section 60CC factors can vary depending on the circumstances.

The court reasoned that the principle in *Rice and Asplund* is generally not in the child's best interests to have repeated applications concerning their custody and access. This is because a prior parenting order already reflects the child's best interests at the time of its making, and ongoing disputes are contrary to a child's welfare. Therefore, further litigation should only be embarked upon if a sufficient change in circumstances can be demonstrated. The court also considered whether an order dismissing an application under *Rice and Asplund* constitutes a "parenting order" under the Act, expressing doubt that it does, as the definition in section 64B does not appear to include such dismissals.

The court ordered that the Mother's application to dismiss the Father's Amended Initiating Application be dismissed. The proceedings were adjourned for a mention on 7 December 2017.

Orders

Orders of the court

The Mother’s application contained in her Response filed on 3 February 2017 to dismiss the Father’s Amended Initiating Application filed on 20 February 2017 be dismissed.

The proceedings are adjourned for mention on 7 December 2017 at 9.30am.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Finally, the principle in Rice and Asplund was considered by the Full Court of the Family Court of Australia in Carriel & Lendrum [2015] FamCAFC 43 (“Carriel & Lendrum”). In that case, the issue was whether, when in applying the rule in Rice and Asplund, it is necessary to address in detail, or even at all, the factors in s.60CC of the Family Law Act 1975 (Cth) (“the Act”) arose. The Full Court addressed that issue as follows (Carriel & Lendrum at [49]-[61]):49. Ground 2 raises an interesting question, and one that we feel has not been directly answered by a court to date. That question is whether when applying the principle in Rice & Asplund, it is necessary to address in any detail, or even at all, the factors for determining what is in a child's best interests contained in s 60CC of the Act?50. A prime example of what has been said to date in relation to this question is what Warnick J said in SPS & PLS (at [48(iii)]), namely:At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.51. This was echoed by the Full Court in Miller & Harrington where their Honours said this (at [72]):It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.52. As can be seen these pronouncements do not provide a direct answer to the question posed above. 53. However, the Full Court in Poisat & Poisat (2014) FLC 93-597 did take the issue one step further in saying at [42], it is readily apparent that …while the nature of the hearing undertaken at either stage will have the best interests of the relevant child/ren as its paramount consideration (s 60CA [of the Act]), the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case.54. We consider that that statement fits neatly with what Warnick J also said in SPS & PLS set out above at [30], and with what Nygh J, with whom Barblett and Fogarty JJ agreed, said in the Full Court decision of Newling & Newling; Mole (Applicant) (1987) FLC 91-856 at 76,467:Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. …55. This approach is also consistent with the recent pronouncement by the Full Court in SCVG & KLD (2014) FLC 93-582 to the effect that the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.56. This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.57. In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.58. Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):… Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.59. This approach, when the principle in Rice & Asplund is in play, can also perhaps be seen as a product of the related question of whether an order dismissing an application on the basis of the principle in Rice & Asplund is a parenting order or not. If it is a parenting order then the Act requires a consideration of all of the factors that bear upon the best interests of the child. This has been touched on in several cases. For example in SPS & PLS Warnick J said this:77. An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:Child’s best interests paramount consideration in making a parenting orderIn deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.78. Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467 [quoted earlier in these reasons]…(Emphasis in original)60. This issue was taken up by the Full Court in Poisat where their Honours said this:53. The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the relevant child’s best interests.54. Her Honour did so. However, we have considerable doubts as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption ins 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made.61. For our part, we agree with the comments of Warnick J in SPS & PLS and the Full Court in Poisat, and we seriously doubt whether an order dismissing an application such as the mother’s here is a parenting order. We are not able to come to a concluded view though because we have not heard any argument directed to this issue.