C and F

[2005] FamCA 110

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA Appeal No. EA 63 of 2004

File No. CAM 3088 of 2002

BETWEEN:

Appellant Father

-and -

Respondent Mother

REASONS FOR JUDGMENT

BEFORE:  Finn J
DATE HEARD:  18 October 2004
DATE OF JUDGMENT:        28 February 2005

APPEAL SUMMARY

MATTER:C and F
APPEAL NUMBER: EA 63 of 2004

(CAM 3088 of 2002)
CORAM:Finn J
DATE OF HEARING: 18 October 2004

DATE OF JUDGMENT: 28 February 2005

CATCHWORDS: FAMILY LAW – APPEAL from a FEDERAL MAGISTRATE – Whether the Federal Magistrate erred in dismissing on a summary basis the applications for residence or shared residence – Whether the Federal Magistrate erred in determining that there had not been a sufficient change in circumstances to justify altering existing residence arrangements – Discussion of principles to be applied in considering whether to reconsider a residence order – Whether the Federal Magistrate erred in refusing, or in giving insufficient reasons for refusing, to appoint a child representative.
FAMILY LAW – APPEALS – Application to adduce further evidence.

Caselaw cited:

Rice v Asplund (1979) FLC 90-725

Bennett and Bennett (1991) FLC 92-191

Appeal dismissed.

Application to adduce further evidence dismissed.

No order as to costs.

This is an appeal by the father against an order made by Federal Magistrate Brewster on 5 May 2004 dismissing applications by the father filed on 2 October 2003, 30 December 2003 and 5 May 2004.
The nature of the applications which were dismissed by the Federal Magistrate will be most conveniently explained in the context of a description of the history of this matter.
I mention at this introductory stage that the father appeared at the hearing of the appeal without legal representation while the mother was represented by a solicitor from the ACT Legal Aid office.
I also explain at this introductory stage that the appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).

History

The father is the father of a child, N, who is now 13. The father commenced a relationship with the mother of N in 1986. They were married in 1989 and the child, N, was born in January 1992.
The father and the mother separated in June 1999. At first the child lived with the mother, but a few months later the child moved to live with the father. That arrangement lasted until August 2002.
On 22 August 2002, orders were made by the Local Court in a rural town in New South Wales. The engrossment of those orders reads as follows:
By consent:
1.Matter transferred to the Family Court of Australia, Canberra.
2. S.62F Counselling ordered.
3. In the interim and by consent:
i)The Child, [N] …, is to reside with the mother …
ii)The child is to have contact with the father … each weekend from 9.00am Saturday to 5.00pm Sunday and each Wednesday from 4.00pm to 7.00pm.
After the matter was transferred to the Family Court at Canberra pursuant to the above orders, it was then transferred to the Federal Magistrate’s Court at Canberra.
There was ultimately a hearing before Brewster FM on 19 June 2003. On that day, the Federal Magistrate made orders that the child was to live with the mother and to have contact with the father each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday and for half of the school holidays. His Honour also made an order that the father’s friend, I, not be present during the child’s periods of contact with the father.

The judgment of the Federal Magistrate of 19 June 2003

In reasons for judgment apparently given ex tempore (that is, orally at, or shortly after, the conclusion of the hearing), and after recording the history of this matter (in terms similar to those which I have set out above), the Federal Magistrate considered and made findings in relation to the matters which s 68F(2) of the Act requires a Court to consider when determining what is in the best interest of the child for the purposes of making a residence and/or contact order concerning that child.
The first of the s 68F(2) matters considered by his Honour was the child’s wishes. Given the emphasis placed on the child’s wishes by the father in his case before me, I will set out in full what his Honour said regarding that matter:
9.[N] was interviewed by [Ms C] who provided a report in this matter. Ms [C] reports as follows, and I quote:
She has, [N], expressed a strong wish to remain living with her mother. [N] told me she used to live with her father and moved to her mothers, "because I wanted to". She was not sure why she had lived with her father after her parents separated. [N] told me that she currently went to her father's every weekend. She said she did not like this frequency much because she would rather have a weekend free so she could be with her friends. In response to my query [N] speculated she would not be happy if she had to continue to visit her father every weekend. She felt she would be happy, however, if she go every second weekend.
10.There is nothing in the report to indicate that the weight to be given to those wishes should be discounted in any way due to the child's maturity or because of any other factors. The child is 11 and a half years of age. Her wishes as to contact arrangements in my opinion must be given considerable weight, and I do so.
11.There is nothing in the report as to how [N] would feel about holiday contact but I infer from the mother's application that the mother feels that that would not be contrary to her wishes.
I also consider it necessary to record what the Federal Magistrate found in relation to the child’s relationships with each of her parents and with other significant persons:
12.Paragraph (b) requires me to consider the nature of the relationship of the child with each of the child's parents and with other persons. Ms [C’s] report did not cover or did not involve an observation of the child with the father as [N] refused to participate in this. Ms [C] did not infer and nor do I think that this was because of any problems in the relationship she has with her father. I am prepared to assume because she is happy to continue to see her father that there is a good relationship between the two of them.
13.As far as other people are concerned, the father has relatives in [the town where the parties live] and I accept the evidence that there is a good relationship between [N] and these people. The mother has re-partnered, if that is the appropriate word with [BG] and although it appears they do not actually live together there is no evidence that the child has other than a good relationship with [BG].
14.The father has a friend, [I], and there is a distinct question mark over the relationship between [N] and [I]. There has been an incidence of violence that occurred last year when [I] struck [N]. The circumstances under which that occurred are deplorable. The father had apparently prepared an affidavit for [N] to sign in these proceedings, and it appears that [I] thought that [N] was unwilling to cooperate in this respect, and that was the reason for her actions. It causes me considerable disquiet.
In the context of the issue of the “likely effect of any changes in the child’s circumstances,” his Honour referred to the fact that the father sought a shared residence arrangement and he expressed his view that this would “involve significant change in the child’s circumstances.” Earlier in his judgment his Honour had explained that the mother had sought an arrangement whereby the child live with her and have alternate weekend and half school holiday contact with the father.
In relation to the “practical difficulty and expense of the child having contact with a parent”, his Honour found that as both parents were living in the same town, there would be no difficulty or expense in contact occurring.
In relation to the capacity of each parent to provide for the needs of the child, his Honour said that he was “prepared to accept that each party has the capacity to meet the child’s intellectual needs and there should be no distinction drawn between them in this respect.” However his Honour went on to say:
22.… An incident which I have already touched on occurred which causes me grave concerns as to the capacity of the father to provide for the child's emotional needs.
23.He prepared an affidavit for the child to sign which the child apparently did sign in these proceedings. That is an appalling thing to do to involve a child in that way. His response was simply, "I didn’t know that it was wrong". Well, not knowing that it is inappropriate, in my view, shows an inability to recognise how inappropriate it is to involve a child of that age in this type of litigation.
24.The wording of the affidavit is redolent of the arguments advanced by the father in this case and I have concerns that words were put in the child's mouth as well but be that as it may the main problem I have with that is the direct involvement of the child in this litigation.
As to the matter of “the child’s maturity, sex and background” his Honour found:
25.… The mother is of Aboriginal descent, but the orders that I propose will maintain a connection with her lifestyle, culture and traditions and so I need not consider that aspect of this paragraph and there is nothing else in that paragraph which is relevant.
As to the issue of “the need to protect the child from harm” and the issues of violence generally his Honour observed:
28.There are allegations of violence made by both sides, against each other, and also involving the child and the father. However, in the context of this case it is not so much necessary to make findings in relation to this, this is not a situation where either parties suggested that there should be no contact with the other or that that contact should be supervised. As I have indicated I propose to take steps to protect the child from any violence involving [I].
As to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parties, his Honour said that he had “no criticism of the mother in this respect.” He also said that his criticisms of the father in relation to the preparation of the affidavit by the child “were relevant in this context.”
When considering “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”, his Honour said as follows:
30.… If there were a shared regimen along the lines the father seeks I feel there may well be more litigation. I am not the least satisfied that that would work. It would require a great deal of cooperation between the parties. I am not that satisfied this is feasible. I am particularly not satisfied that the personality of the father is such that the mother could realistically involve in meaningful dialogue of the sort necessary to make shared regimen work.
His Honour’s overall conclusion was that there were no reasons why the child’s “expressed wishes should not be respected together with the addition of holiday contact which she did not address.”
I mention in connection with his Honour’s judgment of 19 June 2003, that at the hearing of the appeal before me (which, it will be recalled, is an appeal in relation to an order made subsequently on 5 May 2004), it emerged that neither the father nor the legal representatives of the mother had ever received a copy of the judgment of 19 June 2003. The father expressed some concerns that a copy of the judgment seemed only to have become available once the present appeal had been instituted.
There is no indication on the copy of the judgment which appears on the Court file as to when the oral judgment (which would have been recorded by the recording and transcription service used by the Federal Magistrates Court) was in fact transcribed (that is, typed up) and settled (that is, corrected and edited) by Brewster FM.
However, having reflected on this matter since the hearing of the appeal, and having regard to the contents of the transcript of the proceedings before the Federal Magistrate on 5 May 2004 and the ex tempore judgment given by him that day, I consider it likely that his Honour had before him on 5 May 2004 his earlier judgment of 19 June 2003. Indeed, I find it somewhat surprising that at the hearing on 5 May 2004 neither party apparently asked to be provided with a copy of that earlier judgment.

Events subsequent to the decision of 19 June 2003

I return now to the history of these proceedings subsequent to his Honour’s decision of 19 June 2003. On 2 October 2003, the father filed an application (in Form 3) in this Court in which he sought the following orders:
1)All previous Orders concerning the child [N] … be Discharged. As the circumstances for the child have changed, refer Affidavit Form 16 attached.
2)That the child [N] … Reside with the Father and the Mother each Parent Party responsible for day to day care in each residency and access period
3)The three Month residency access mediated agreement in form 60 Offer of Settlement be entered into by both Parents
4)Both Parents enter a new mutual maintenance contract, both Parents paying equal amounts into the child[’]s separate bank accounts, by way of Auto Deduction and Contract lodgement with the child support agency
5)Access within holiday periods is discharged whilst within each Parents residency period, if the child and current resident parent are away, if not away standard residence access contractual agreement applies
6)That if either Parent moves away from [the town where the parties both live] in effect terminating this mutual residence access agreement Order as in Offer of Settlement.
That the Child [N] … Being above the age of twelve is free to her individual choice without any Parental [pressure] to reside with [whichever] Parent of her choice at that stage, If this [occurs] this in [effect] terminates Mutual residence access agreement Order
7)Both Parents are free to participate in schooling representations and each Parent is to inform the other of any schooling and health concerns
On 20 November 2003, the father filed an application (in Form 8) seeking the following orders:
1)When the contravention of order is heard on the 1st December 2003 I the applicant apply to vary the order as follows:
That the three month residency access agreement, in the offer of settlement be entered into in accordance to clause 16 of the original final order passed the 19/01/2000.
Which has been mediated in the existing mediation process.
2)That both parents sign and lodge a new mutual maintenance agreement contract as is the first contract of 19/01/2000. In finalising CSA departmental problems.
3)That the partners or other parties particularly the relationship to [BS] not be [withheld] within orders.
4)That all previous orders be discharged.
Then on 21 November 2003 the father filed a further application (in Form 8) in which he sought orders in identical terms to those sought in the application (Form 3) filed on 2 October 2003.
All these applications were given a hearing date of 1 December 2003.
It seems clear that on 1 December 2003 some or all of these various applications came before Brewster FM. Whether his Honour conducted a hearing on that day is not entirely clear, although it appears from the engrossment of orders made that day that he may have done little more than make directions. The engrossed orders of 1 December 2003, which show that each party appeared “in person” on that day, are as follows:
1.THAT (sic) listed for final hearing on over-list basis on 1 April 2004 at 10.00am and for directions on 16 February 2004 at 10.00am.
2.THAT the Form 48 Application is stayed until further Order.
On 30 December 2003 the father filed an application concerning child support matters (Form 63) in which he sought the following orders:
Apply for Orders of Mutually [obliged] equal Payments into the child[’s] separate Bank Accounts by bank auto deduction as child as co signatory to each Parent to child[’]s account, accounts.
Paid fortnightly for Parents primary bank accounts, to child[’]s separate accounts
Drafting of new child Maintenance Contract, agreement
Lodgement of [mutually] obliged contract, agreement to Child Support Agency
On 16 February 2004 Brewster FM made the following directions apparently in the presence of the father and the mother’s solicitor:
1.THAT the father file and serve any affidavits upon which he intends to rely by close of business on 26 February 2004.
2.THAT the mother file and serve any affidavits upon which she intends to rely by close of business on 11 March 2004.
3.THAT the father file and serve any affidavits in reply by close of business on 18 March 2004.
4.THAT each party file and serve a chronology, and a Minute of Orders sought, if those Orders are different to those sought in that party’s application or response, by close of business on 18 March 2004.
5.THAT subpoenas be returnable no later than 25 March 2004.
6.THAT the applicant either pay the hearing fee or obtain an exemption with respect to that fee by 18 March 2004.
7.THAT the whole of each party’s evidence in chief is to be contained within his or her affidavit and the Court will not permit the previous affidavits to be relied upon.
On 4 March 2004 the solicitor for the mother filed a response in which the following orders were sought:
1.That the father’s application in relation to contact and residence filed in November 2003 be dismissed.
2.That the father’s application in relation to child support filed on 30 December 2003 be dismissed.
Also on 4 March 2004 the mother and her new husband, BG (whom she married in October 2003) filed affidavits, as did the father and his friend, I, on 17 March 2003.
I understood it to be common ground that on 1 April 2004, the matter, being an over-listed matter, was not reached. It was then apparently re-listed for 5 May 2004.
On 5 May 2004, the father filed a further application in which he stated that he sought the following interim orders:
1.That all existing orders relating to the child [N] … be discharged
2.That the child [N] reside with the applicant father …
3.Respondent mother have contact with the child every second Saturday from 10.00am till 5.00pm Sunday

The hearing before Brewster FM on 5 May 2004

When the matter came before Brewster FM on 5 May 2004 the father appeared on his own behalf and the mother was represented by a Legal Aid solicitor.
At the commencement of the hearing his Honour obtained confirmation from the father that he had three applications before the Court, being two applications relating to residence, one filed on 2 October 2003 and the other filed that day (5 May 2004), and an application (Form 63) concerning child support filed on 30 December 2003.
His Honour then raised with the father whether there was any provision in the Child Support Assessment Act 1989 or in any other legislation which would permit his Honour to make the orders which the father sought in his application filed on 30 December 2003. When the father was unable to point to any such provision, his Honour dismissed that application.
Then, after receiving confirmation from the father that his application for residence filed that day (5 May 2004) did not supersede his application filed on 2 October 2003, his Honour stated that he proposed to start with “the preliminary question” being “what is the appropriate change in the circumstances”, and he went on to say that there was nothing in the material of the father or of the mother which (Transcript 05/05/04 at p2, line 41):
… would indicate that since orders were made following a full hearing in June last year, there’s been sufficient change in circumstances to justify changing residential arrangements of this child.

The father then said that he “would like to apply for a child representative to be appointed” for the child and his Honour responded (Transcript 05/05/04 at p3, line 4):
No, not at this stage you’re not. You should have – if there are reasons to do that you should have done that when the matter was before the Court last year.
A little later his Honour re-iterated his position (Transcript 05/05/04 at p3, line 28):
… I’m not disposed to appoint a child representative. The matter proceeds today.
His Honour then returned to what he termed his “original question” being the need for “a change in circumstances sufficient to justify re-hearing” of the case, saying (Transcript 05/05/04 at p3, line 42):
… I’ll take you back again to my original question. The principle long laid down by the Courts is that where a decision has been made about residency of a child, it will not be – fresh proceedings will not be permitted unless there’s been a change in circumstances sufficient to justify re-hearing that case. You indicated last here there has been, but when I read the material I just can’t see where it is.
The father replied (Transcript 05/05/04 at p4, line 1):
… Well, it’s in a number of various extra nights. It’s in the child actually voluntarily operating outside the order of her own volition, outside of her mother, and outside of the counsel ordered request to stick to orders as the other parent admitted on the 16^th – the first directions hearing, I will stick to orders then. And I said that’s going against the child’s wishes. That’s nasty, in which it is the case. You have a nasty vindictive set up. Now there are situations in here that have expressed wishes of the child in written form…
Shortly thereafter, the father again raised the issue of his application for the appointment of a child’s representative saying that he had an application form for such an appointment. His Honour then again ruled that he was not prepared to make such an appointment, and in explaining that it would necessitate a further adjournment of the matter, said (Transcript 05/05/04 at p5, line 5):
But I’m not going to do it. I’m not going to do it. We’re here today to hear your application that the child live with you. Plainly we will not be able to hear that application if I adjourn the matter to appoint a child’s representative. This Court is listing out into next February, people are waiting for a long time to get their matters heard ---
For the remainder of the hearing (which extended over some 16 pages of transcript) his Honour endeavoured to ascertain from the father what were the changes in circumstances which would justify a re-hearing of the issue of the child’s residence, and the father continued to press his application for the appointment of a child’s representative. The following passages in particular from the transcript show the attempts which his Honour made to establish what were the changes of circumstances on which the father relied (Transcript 05/05/04 at p14-15):
FEDERAL MAGISTRATE: --- I propose to approach this in this case today on the basis of, first of all, ascertaining whether there can be – whether a finding could be made that there has been a sufficient change in circumstances to justify reopening the issue of residence. Now, as I understand it, the change in circumstances are that you have had additional time with the child outside the contact orders provided for in June last year, being one week in September when the mother was in hospital, and I think, four or five you might have said, other occasions where the child has stayed with you for an additional night since June last year. Now, is there any other facts which you will allege which will constitute a change in circumstances?
[THE FATHER]: Well, have you read the affidavit then, your Honour?
FEDERAL MAGISTRATE: Yes, I have.
[THE FATHER]: Well, it’s got ---
FEDERAL MAGISTRATE: Would you like to draw my attention to the parts of the affidavit you consider germane to this issue because I may have missed something.
[THE FATHER]: Well, the use of mediation in a delaying tactic is quite relevant. I have a transcript here of the contravention part heard, where this parent says, “I’ve been advised by my counsel that we’ve just got a few more statements to do then it’s all over. I’ve got to – supposed to write you a letter”---
…
FEDERAL MAGISTRATE: I’ll go back – I’m giving you every opportunity, I think, … I’ll go back to the original point. The change in circumstances issue. As I understand it you would say there has been a sufficient change in circumstance because the child spent a week with you in September and four or five days with you in addition to the time provided for in the orders of June. Is there any other thing that’s happened since June last year that you would say just – constitutes a sufficient change in circumstances to revisit the residence issue?
[THE FATHER]: How could it, your Worship. You accepted the application and on that application date – this other parent with this greedy counsel that wants to win every case and be here to hear subpoenas that don’t even apply to her against your procedural orders in an effort to get paid more.

The judgment of the Federal Magistrate of 5 May 2004

In his ex tempore judgment of 5 May 2004 his Honour again ruled that he did not propose either to appoint a child’s representative or to embark on a hearing of the father’s applications for residence or shared residence, and accordingly he dismissed the father’s applications.
As his Honour’s reasons for these decisions are relatively short, it will be convenient to quote them in full rather than to attempt to summarise them:
1.In this matter the father filed an application on 2 October 2003 seeking shared residence in relation to the child [N]…. In June of that year following a contested hearing I had ordered that the child live with the mother. The basis for revisiting those orders as explained to me by the father on the first return date of that application was that the parties had, in effect, walked away from the June orders and that the child had spent significantly more time with the father than was envisaged in those orders. I accordingly set the matter down for a second hearing.
2.The matter was set down as a primary fixture for hearing today. Today the father filed a further application this time seeking orders that the child live with him and have contact with the mother each alternate weekend. When the case commenced the father asked that that hearing be vacated, that a new hearing date be allocated (which would be many months down the track) that a child's representative be appointed and that in the meantime the child live with him.
3.I do not propose to appoint a child's representative or to vacate today's hearing. There are two reasons for that. The first is that I have little doubt that this continued litigation is stressful for the mother and I can infer that this could have an impact on the child. I do not think it is in the best interests of the child to have this litigation hanging over the mother’s head.
4.The other reason is the due administration of justice. A day has been set aside to hear this matter. It is inimical to the proper administration of the court for parties to come along and seek a vacation of a hearing date by reason of an application that could have and should have been made at an earlier date. Any application for the appointment of a child's representative should have been made in a timely fashion so that I could have considered that issue well before the hearing date. It is too late now.
5.At the outset of this hearing I asked the father to outline the facts that he would be alleging constitute a sufficient change in circumstances since the orders were made in June last year to justify revisiting those orders.
6.As I understand it the change in circumstances that he will allege occurred are:
(a)that when the mother was in hospital for a week in September last year the child stayed with him, and;
(b)that since the contact orders were made in June last year the child has spent four or five other nights with him over and above the nights provided for in the June orders.
7.In my view this falls far short of a sufficient change in circumstance to justify revisiting the issue of the child's residence.
8.I do not propose to embark on a hearing of this matter. That would be pointless. All that would happen would be the father giving evidence along the lines of the statements he has made from the Bar table which would inevitably involve me dismissing his application. I therefore propose to dismiss it without going through the façade of a final hearing. The orders will be that the father's form 3 application filed on 2 October last year and the application filed today are dismissed.
At the conclusion of his reasons, his Honour also explained that the father’s child support application was dismissed saying as follows:
9.The father also filed an application in relation to child support. This was to the effect that each party pay a certain amount into a bank account to be controlled by the child. He could not point me to any legislative provision that would give me power to make such an order and that application is also dismissed
I note here that I do not understand any issue to be raised in this appeal concerning the dismissal of the father’s application in relation to child support, and certainly no ground of appeal is directed to the child support matter (as will be seen from paragraph 50 below).

The father’s appeal against the order of 5 May 2004

It is against the order of the Federal Magistrate of 5 May 2004 dismissing his applications of 2 October 2003, 30 December 2003 and 5 May 2004 that the father now appeals.
The grounds of appeal contained in the father’s notice of appeal are to the following effect:
1.I appeal the dismissal of joint custody application Form 3 listed for hearing on 1/12/2003
2.I appeal the Interim Order application listed 5/5/2004
3.I request to have the Final Order dismissed joint custody application heard 5/5/2004 re-listed and appealed.
4.I request that the Court supply adequate reason as to why a Child’s representative has been refused and supply ground’s substantiating the refusal of the child’s expressed written wishes, as presented to a court, within an adverse decision.
5.I made application for the court to appoint a Child’s representative,
6.On Final Order application of 1/12/2003 and 30/12/2003 the Court determined enough change had occurred in it’s accepting the hearing, of a new Joint custody application
7.Substantial change exists now as the order of 19/6/2003 is not in keeping with the child’s wishes, and the child is forced to Residence and access (R&R Children’s Wishes 2002)
8)The child displayed, beyond reasonable doubt to the Court her efforts in expressing her wishes with written request’s presented and independent counselling presentation attempt. Both refused by the Court. It is beyond reasonable doubt that this current Order of 19/6/2003 is not in keeping with the child’s wishes.
This alone substantiates the granting of a child’s representative
It is against the human rights of a child to force a child to Residence and Access without the adequate inclusion and expression of that child’s wishes. Within decision.
9)I request that the Court accept latest affidavit involving the child’s wishes and grant a Child’s representative for the final Hearing of this appeal, dismissal of Joint Custody application
10.The evidence of current Resident parties counsel, Ordered them to force the child to the unworkable current Order, against the child’s wishes are in Affidavit of the Interim application applied, 5/5/2004 Counsel also advised no mediation process within this new joint custody application, an illegal process! Within Final Hearing against the administrative process of the Court.
11.I believe one Parent’s counsel ordered this, on the basis of refusal to follow reasonable counsel advice under the threat of discontinuation of representation.
12.This Counsel produced an illegal subpoena, as part of this dismissal as an adverse decision. This and all of the above are superior ground’s for appeal of dismissed application.
As I explained to the father at the hearing of the appeal, a number of the grounds contained in his notice of appeal are not in fact grounds of appeal. However, having regard to the overall content of the grounds of appeal, to the father’s written outlines of argument and to his oral submissions to me, I am reasonably confident that his complaints concerning the Federal Magistrate’s decision and orders of 5 May 2004 can be summarised as follows:
· that his Honour failed to provide adequate or proper reasons for refusing to appoint a child representative who could ensure that the child’s wishes were before the Court, and
· that his Honour erred in dismissing on a summary or threshold basis the father’s application for residence or shared residence orders.

The father’s application filed 5 October 2004

Before considering these complaints embodied in the father’s appeal, I mention that on 5 October 2004 the father had filed an application which, it seems clear, he wanted considered in the context of the appeal. A number of the matters referred to in that application are the same matters which I will have to consider in determining the appeal; thus I will not refer to them at this stage.
However, I understood from the application in question that the father was seeking that a child representative be appointed for the hearing of the appeal and that the hearing of the appeal be adjourned until that appointment could be made and the child’s representative obtain evidence concerning the wishes of the child.
As I explained to the father, one of the matters which I have to determine in his appeal was whether Brewster FM had erred in not appointing a child’s representative, and therefore it would effectively defeat the purpose of the appeal for me to appoint a child representative prior to the hearing of the appeal.
The father’s application filed 5 October 2004 also sought that I receive as further evidence two affidavits. Both affidavits concerned events which took place at the time of a directions hearing in relation to the appeal (which I conducted on 6 September 2004) and which involved an arrangement apparently made by the solicitor for the mother for a Court counsellor to be available on that day in case the assistance of a counsellor became necessary. I was of the view at the hearing of the appeal, and I remain of the view, that this further evidence has no relevance to the issues which require determination for purposes of the appeal and I will therefore not admit the further evidence.

The subpoena issue contained in ground 12

Before considering the principal issues which arise on this appeal, I will refer to the apparent complaint regarding a subpoena which is contained in ground 12 of the father’s grounds of appeal. I was informed by the solicitor for the mother that she had caused a subpoena to be issued to a particular New South Wales government agency and that the father had objected to the issue of the subpoena on the basis that it was outside the time limit provided by the Federal Magistrate’s directions made on 16 February 2004. However when the father’s objection to the issue of the subpoena was listed for determination before the Federal Magistrate and the father did not or was not able to appear, the solicitor for the mother did not press the issue of the subpoena. Accordingly, any complaint by the father concerning the subpoena can have no substance.

The dismissal of the father’s application for residence on a threshold basis

I turn then to consider the father’s complaint that the Federal Magistrate erred in dismissing his application in relation to the residence of the child on a threshold or summary basis.
It was very clear from the father’s submissions that he is familiar with the decision of the Full Court of this Court in Rice v Asplund (1979) FLC 90-725 and the principles stated in that case.
In Rice v Asplund, Evatt CJ (with whom Pawley SJ and Fogarty J agreed) said (at 78,905-78,906):
The substantial point of law argued by counsel for the appellant was that in order to justify the review of an earlier custody order, the applicant must satisfy the court that there has been substantial change in the circumstances since that earlier order. It is not sufficient, in his submission, that the court takes a view different from that taken by the judge who first heard the matter. In this case it was submitted that there was no change in circumstances since the date of Larkin J.’s order of October 1975 to warrant a review and a change of custody and that insufficient weight was given to the view which Larkins J. formed of the parties and of the issues. Counsel for the appellant relied on the case of McManus (1969) 13 F.L.R. 449. In that case the father applied successfully to vary a consent custody order. The Full Court of the Supreme Court of New South Wales allowed the appeal, finding that the judge, Selby J., had given insufficient weight to the earlier decree, and I quote:
“The decision to overturn such decree made with the consent of the father, consent given in the light of the then known circumstances, is one which requires most substantial grounds. A reversal of the decree would require the discharge of a particularly heavy onus on the husband, a criterion not found in the affirmative by his Honour. One would look for new facts and circumstances to be revealed before this onus would be discharged.”
The case of McManus was referred to by the Full Court of the Family Court in the case of Hayman (1976) FLC ¶90-140 at p. 75,680. That case, like the one before us, concerned a custody decision in which a Judge of the Family Court had reversed an earlier custody order made by the Supreme Court. One ground on which the appeal was allowed was that the Family Court Judge did not have regard to the prior decision of the Supreme Court, or to the reasons for that decision. In fact, the Family Court had neither the transcript nor the reasons for that decision before it.
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.

Thus, Rice v Asplund establishes that where an order has already been made (whether by consent or not) in relation to the issue of a child’s residence, a Court should not “lightly entertain an application to reverse” that earlier order unless it is satisfied the at there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal.
In Bennett and Bennett (1991) FLC 92-191 it was made clear by the Full Court in the following passage that the question of whether a sufficient change of circumstances exists to warrant a reconsideration of a residence order, is a matter which the trial Judge in his or her discretion may determine either as a threshold question or in the course of a full hearing of the matter (at 78,262):
… it is, we think, a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. This is in no way to derogate from the general principle expressed by the Full Court in Rice and Asplund (1979) FLC ¶90-725, and in Zabaneh and Zabaneh (1986) FLC ¶91-766, that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances. In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown. The fact that the determination as to whether or not to deal with a change in circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of Lowe v Lowe (6 April 1990). In that case Elliot J had, in fact, dealt with the threshold question as a preliminary matter and the High Court thought that it was within his discretion to do so, but made it clear that the matter was one of discretion.
Thus given what was said by the Full Court in Bennett, it was clearly open to his Honour (in other words, within his discretion) to determine on a threshold basis (rather than in the course of a full hearing) that there had not been a sufficient change of circumstances to warrant a reconsideration of the living arrangements for N.
It may be that in light of his Honour’s direction made on 1 December 2003 that the father’s application be “listed for final hearing” (originally on 1 April but ultimately on 5 May) that the father gained the impression that there was to be a full hearing of the matter. But there is nothing in the authorities which suggests that if at the commencement of what is initially intended to be a full hearing of a residence case, the Judge or Federal Magistrate becomes aware on the material then available, that there is not a sufficient change in circumstances to justify a rehearing of the residence issue, that the Judge or Federal Magistrate cannot then dispose of the matter on a threshold basis.
This appears to be what happened in the present case. It will be seen from the comments of his Honour, in the passage from the transcript of the hearing of 5 May 2004 which I quoted at paragraph 41 above and from the first paragraph of his Honour’s judgment of 5 May 2004 (see paragraph 46 above), that some evidence was apparently given, or a submission made, at the directions hearing on 1 December 2003, which caused his Honour to set the father’s application for residence for “final hearing”. The expression “final hearing” might well suggest that a full hearing of the application was intended.
However, pursuant to directions made on 16 February 2004 both parties subsequently filed affidavits (see paragraph 32 above). In his affidavit (filed on 17 March 2004) the father stated “everything has changed” and he then referred to the child spending a “full week” with him while the mother was in hospital (apparently in September 2003). The father also referred to the child staying with him on additional nights (or days) outside the provisions of the order of 19 June 2003, being on 8 August 2003 and on 11, 12 and 13 December 2003 and, it seems, on one occasion in November 2003.
It seems clear that the Federal Magistrate was referring to this evidence when he said at a fairly early stage during the hearing on 5 May 2004, that there was nothing in the material of the father, or of the mother, to indicate that since the orders were made in June 2003, there had been sufficient change in circumstances to justify changing the residential arrangements for the child (see paragraph 38 above). But it is important to note that his Honour did not then immediately dismiss the father’s application. Rather he proceeded for some 20 pages of transcript to ascertain from the father what it was that constituted the alleged change of circumstances (as the passages of transcript quoted in paragraph 44 above demonstrate).
His Honour then expressed his conclusion about this matter in paragraphs 5 to 8 of his judgment, which I set out earlier, but here repeat:
5.At the outset of this hearing I asked the father to outline the facts that he would be alleging constitute a sufficient change in circumstances since the orders were made in June last year to justify revisiting those orders.
6.As I understand it the change in circumstances that he will allege occurred are:
(a)that when the mother was in hospital for a week in September last year the child stayed with him, and;
(b)that since the contact orders were made in June last year the child has spent four or five other nights with him over and above the nights provided for in the June orders.
7.In my view this falls far short of a sufficient change in circumstance to justify revisiting the issue of the child's residence.
8.I do not propose to embark on a hearing of this matter. That would be pointless. All that would happen would be the father giving evidence along the lines of the statements he has made from the Bar table which would inevitably involve me dismissing his application. I therefore propose to dismiss it without going through the façade of a final hearing. The orders will be that the father's form 3 application filed on 2 October last year and the application filed today are dismissed.
Having regard to the principles in Rice v Asplund and Bennett and Bennett, I am satisfied that his Honour did not err in the exercise of his discretion when, without conducting a full hearing of the father’s new applications for residence, he dismissed those applications on the basis that the father’s material did not disclose a sufficient change in circumstance to justify revisiting the issue of the child’s residence. In my opinion this course was open to his Honour even though he may have at an earlier directions hearing indicated that he was prepared to conduct a full hearing of the application (or applications). As I have said earlier, when his Honour came to conduct the final hearing, the evidence then before him did not support the claims which the father had apparently made at the directions hearing that there had been a sufficient change of circumstances to warrant a reconsideration of the existing residence order.
Apart from what can be termed the father’s general challenge to his Honour’s dismissal on a summary basis of the father’s new residence applications, there were a number of further specific matters raised by the father in support of this aspect of his appeal which I will now address.
First, there were apparently pending either on 19 June 2003 or on 5 May 2004, one or more applications by the father that the mother be dealt with for alleged contraventions of orders. It was the father’s contention, as I understood it, that the residence issue could not therefore be said to have been finalised, or final orders made, for the purposes of the operation of the principle of Rice v Asplund. I also understood the father to submit that Rice v Asplund could have no precedent status or value in this case because there had been no pending contravention applications in that case.
As I endeavoured to point out to the father at the hearing of the appeal, applications for residence orders are determined under Part VII of the Act and are entirely different proceedings from contravention proceedings which are determined under Part XIIIA. The fact that contravention proceedings may be pending between parents at a time that a final residence order is made in proceedings between them, could not detract or undermine the final quality of the residence order for purposes of the principles in Rice v Asplund. Similarly, the fact that there may have been no contravention proceedings pending in Rice v Asplund does not diminish the application to this case of the general principles concerning the reconsideration of residence orders which were stated in that case.
Secondly, I understood the father to query why in light of the authorities which require a sufficient change of circumstances before a residence order can be reconsidered, it was possible for the orders which were apparently made by consent at the Local Court on 22 August 2002, to then be changed by Brewster FM in his decision of 19 June 2003 without regard to whether there had been a sufficient change of circumstances.
The answer to this query is that the orders made in the Local Court are stated to be “interim only”; that is, those orders were made pending a full consideration of the matter on its merits by the Family Court (or the Federal Magistrates Court) to which the matter was to be transferred by the Local Court. That full consideration on the merits took place at the hearing before Brewster FM on 19 June 2003.
I also understood the father to challenge his Honour’s summary dismissal on 5 May 2004 of the father’s application for interim orders filed that day, on the grounds that it was an application for interim orders only (see paragraph 34 above).
There is nothing in Rice v Asplund and Bennett and Bennett to suggest that the principles in those cases (which I have earlier set out) do not apply to an application for interim orders (as well as final orders) the effect of which would be to change an order that has been made on a final basis (as opposed to on an interim basis). Thus his Honour was entitled to dismiss on a summary or threshold basis both the application for interim orders filed on 5 May 2004 as well as the application for final orders filed on 2 October 2003.
So far as the father’s application of 2 October 2003 is concerned, I understood the father to complain that there was no formal written application before his Honour by the mother for the dismissal of that application. That fact could not deprive his Honour of the jurisdiction for dismiss the application on a threshold basis if he considered that the principles in Rice v Asplund applied.

The Federal Magistrate’s reasons for refusing to appoint a child representative

I come then to the father’s complaint that the Federal Magistrate erred in failing to provide adequate or proper reasons for refusing to appoint a child representative who could ensure that the child’s wishes were before the Court.
For the sake of convenience, I will again here repeat the paragraphs from his Honour’s judgment, which I set out earlier, where he explained why he was not prepared to appoint a child representative:
3.I do not propose to appoint a child's representative or to vacate today's hearing. There are two reasons for that. The first is that I have little doubt that this continued litigation is stressful for the mother and I can infer that this could have an impact on the child. I do not think it is in the best interests of the child to have this litigation hanging over the mother’s head.
4.The other reason is the due administration of justice. A day has been set aside to hear this matter. It is inimical to the proper administration of the court for parties to come along and seek a vacation of a hearing date by reason of an application that could have and should have been made at an earlier date. Any application for the appointment of a child's representative should have been made in a timely fashion so that I could have considered that issue well before the hearing date. It is too late now.
I understood it to be the father’s submission that there was no evidence that continued litigation would be stressful for the mother and that this would have an adverse impact on the child. It may well be that there was no evidence before his Honour of these matters. However, in this jurisdiction, Judges and Federal Magistrates must be able to draw some inferences concerning human emotions and responses without the need for specific evidence. I am satisfied that particularly in circumstances where Brewster FM had already conducted a full hearing, and delivered a comprehensive decision, in relation to the residence arrangements for the child, and where he had had both parties before him at the directions hearing on 1 December 2003, that he was entitled to conclude that continued litigation would be stressful for the mother, and that this could have an adverse impact on the child. His Honour was also, in my opinion, entitled to take these conclusions into account in deciding not to prolong the litigation by the appointment of a child representative.
I am also satisfied that it was open to his Honour in the circumstances of this case, and particularly against the background of the hearings which had already been conducted, to take into account when determining whether or not to appoint a child representative, the various matters which he canvassed in paragraph 4 of his judgment and which he described in terms of the “the due administration of justice”.
It is important when considering whether his Honour erred in refusing to appoint a representative for the child to bear in mind that the reason that the father wanted such an appointment made was to ensure that the wishes of the child (then aged 12) were before the Court. As a general rule, this would be an important factor supporting the appointment of child representative (see Re K (1994) FLC 92-461).
However, in the present case Brewster FM had had before him at the hearing, less than 12 months earlier, evidence concerning the child’s wishes from an independent expert, and he had made findings on the basis of this evidence in his judgment of 19 June 2003. Moreover, his Honour had also in that earlier judgment made findings and expressed concerns about the father’s attempts to obtain evidence from the child for purposes of the residence proceedings. Having regard to these matters, his Honour did not, in my view, err in refusing to appoint a separate representative to further explore the child’s wishes notwithstanding the child’s age.

Conclusion

Thus, I have not been persuaded that there was any error on the part of Brewster FM which would justify my interference as an appellate Court with the decisions which he made and which are challenged by the father. Accordingly the father’s appeal must be dismissed.
I would only add in conclusion that it was very clear to me having heard the father’s submissions on the appeal that he is concerned for the child’s well-being. However, as was said by certain members of the High Court in CDJ v VAJ (1998) FLC 92-828 at paragraph 118:
… The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.

Costs of the appeal

In the event that the appeal was to fail, the solicitor for the mother (who is legally aided) sought an order that the father pay the mother’s costs of the appeal.
However, having regard to the fact that the father is unemployed and on a disability pension, I am not persuaded that the circumstances warrant a departure from the general rule that each party to proceedings under the Act pay his or her own costs.

Orders

That the appeal be dismissed.
That the application to adduce further evidence be dismissed.
That there be no order as to costs.

I certify that the preceding 86 paragraphs are a true copy of the reasons for judgment of this Honourable Court

Associate

[2005] FamCA 110

28 February 2005

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