Camden & Chalk
[2009] FamCAFC 10
•29 January 2009
FAMILY COURT OF AUSTRALIA
| CAMDEN & CHALK | [2009] FamCAFC 10 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Parents had order for joint parental responsibility – Mother applied to have the children’s school changed – Application to permit change of school was refused – Mother subsequently moved the children to a different school – Father brought an application that asserted that this alteration of school contravened the order for joint parental responsibility – Federal Magistrate found that the mother had contravened the order for joint parental responsibility without reasonable excuse, ordered the mother enter into a bond and altered the parenting order to require the children attend a specific school – Mother appealed the findings of the contravention, the bond and the variation order The Federal Magistrate delivered ex tempore reasons in relation to the contravention but stood over the question of what orders to make in respect of it – After the reasons were delivered the mother tried to present further evidence in respect of the contravention – Federal Magistrate did not permit further evidence as reasons had already been delivered – At a subsequent hearing the mother again tried to put further evidence before the Federal Magistrate – Federal Magistrate held that he was functus officio in respect of the contravention and therefore did not have power to reopen – The mother presented no authorities to assist the Federal Magistrate – Error of law – Distinction between delivering findings and/or reasons and making an order – Courts can hear further evidence, alter, amend or change reasons up to the point that orders are entered The findings in respect of the contravention are closely linked to the alteration of the parenting order and therefore both appeals succeed – The availability of further evidence necessitates that the applications be remitted for rehearing |
| Evidence Act 1995 (Cth) s 43 Family Law Act 1975 (Cth) s 70 NAC; s 70NAF; s 70NBA; s Federal Magistrates Court Rules 2001 (Cth) r 16.05(2)(b) |
| CDJ v VAJ (1998) 197 CLR 172 In the marriage of Rice & Asplund (1979) FLC 90-725 R v Ireland (1970) 126 CLR 321 S & F [2003] FamCA 603 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 |
| APPELLANT: | Ms CAMDEN |
| RESPONDENT: | Mr CHALK |
| APPEAL NUMBER: | NA | 54 | of | 2008 |
| FILE NUMBER: | BRC | 3435 | of | 2008 |
| DATE DELIVERED: | 29 January 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | WARNICK J |
| HEARING DATE: | 29 September 2008 and 23 January 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 May 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 704 [2008] FMCAfam 748 [2008] FMCAfam 1431 |
REPRESENTATION
| SOLICITORS FOR THE APPELLANT: | Barry & Nilsson Lawyers |
| RESPONDENT: | In Person |
Orders
That the appeal be allowed
That the orders of the Federal Magistrates Court made 23 May 2008 be set aside
That the father’s application for contravention filed 18 April 2008 be remitted to the Federal Magistrates Court for rehearing by a Federal magistrate other than Jarrett FM
That there be no order as to the costs of the appeal
IT IS NOTED that publication of this judgment under the pseudonym Camden & Chalk is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 54 of 2008
File Number: BRC 3435 of 2008
| Ms CAMDEN |
Appellant
And
| Mr CHALK |
Respondent
REASONS FOR JUDGMENT
By an order made in the Family Court of Australia in June 2004, Mr Chalk and Ms Camden had “joint parental responsibility for the long term care, welfare and development of their children, [M], who was born in November 1997 and, [H], born in February 2000.” Subsequently the mother applied to the Federal Magistrates Court for an order permitting her to change the children’s school from the School A to School B. The application was heard and, after a chequered path which need not be set out here, ultimately refused.
Subsequently, the mother moved the children, first M and later H, to the School C. Quite some time after these events, the father brought an application asserting that the mother had, by changing the children’s school, contravened the order for joint parental responsibility, without reasonable excuse. This application was determined by Federal Magistrate Jarrett. He found the contravention made out in respect of the removal of each child from one school and placement into another and that there was no reasonable excuse. He ordered that the mother enter into a bond and complete a course in a parenting program. As well, he varied the June 2004 orders, to the effect that both children return to School A following the mid-year holiday period in 2008 and that thereafter the children remain at that school and not be removed therefrom without the written consent of both parties.
On 4 July 2008, Jarrett FM stayed the operation of that order pending determination of this appeal, which is brought by the mother against the findings of contravention that underpinned the order for the bond, against that order itself and against the orders varying the June 2004 orders, in respect of the children’s schooling.
There are three grounds of appeal. The first two go to the contravention findings and consequent orders. In summary, they are:
1.That the weight of evidence required a determination on the balance of probabilities that the mother had either not contravened the order that the parents have joint parental responsibility or had made a reasonable attempt to comply with that order.
2.That the learned Magistrate wrongly refused to allow the mother to reopen her case, to put further evidence before the Federal Magistrate.
In support of these two grounds, the first in particular, the mother applied for leave to adduce further evidence.
The third ground relates to the variation of the primary order about the children’s schooling. In summary, it is:
3.The learned Magistrate erred in varying the June 2004 orders in respect of schooling when he ought have found that the parents had jointly consented to the children attending the School C and erroneously found that a change of primary schooling constituted sufficient change of circumstances to warrant a variation of the primary children’s order.
Did the weight of evidence require a determination on the balance of probabilities that the mother had either not contravened the order that the parents have joint parental responsibility or had made a reasonable attempt to comply with that order.
The particulars of this assertion that are set out in ground one in the Notice of Appeal are lengthy, but they provide an introduction to the evidence and argument about it. Those particulars are as follows:
a.The Learned Federal Magistrate failed to find that the Respondent had executed an Application for Admission giving his consent to for the children, [M] born …November 1997 and [H] born …February 2000, to be admitted to [School C] on the dates and time alleged in the Application for Contravention.
b.The Learned Federal Magistrate failed to give any, or any proper consideration to the Appellant’s evidence that:
i.The Respondent had requested the children attend [School C];
ii.The Respondent had initially proposed [School C] for the children;
iii.The Respondent had executed documents for the children to be admitted to [School C]; and
iv.The context in which the Respondent executed the documents is made plain on the face of the documents.
c.The Learned Federal Magistrate failed to give any, or any proper consideration to the following unchallenged facts:
i.That the Respondent had not questioned why his children had been admitted to [School C] without his apparent consent;
ii.That the Respondent had facilitated the children’s attendance at [School C] at all times; and
iii.That the Respondent had brought his Application for Contravention 15 months and 6 months respectively since the behaviour alleged to be the contraventions.
Of these matters, in his reasons for judgment delivered extempore on 20 May 2008, the Federal Magistrate said:
4.It is worth recording that the mother agrees that the parties must consult about schooling issues concerning the children; that she had made such an application in respect of schooling that was opposed by the father; and his opposition was successful. But she says, nonetheless, I can infer from certain circumstances that the father has in fact consented to the change of school for each of the children. It follows from her submission, it seems to me, that his consent to the change of schools is necessary for there to be a proper exercise of joint parental responsibility for these children.
5.I am satisfied of the following matters beyond reasonable doubt. Firstly, that there was a hearing before Lindsay FM in the middle of 2006 where the mother's application for a change of schools for both children was heard and determined against her. Secondly, that she presented a form to the husband in November 2006 which may have been a form of application for admission for the child, [M], to [School C]. There is in evidence, exhibit 1, documents which purport to be signed by, and which the husband accepts were signed by him and which, on their face, seem to have something to do with [School C].
6.There is also, now as exhibit 2, a document headed “Application for Admission” which seems to relate to the child, [H], which purports to be signed by the husband as well. There are considerable difficulties with the documents in a number of respects. First of all they are photocopies, and whilst the Evidence Act permits the use of photocopies, the copies themselves are very unclear. Secondly, an issue has arisen about the genuineness of the husband's signature to the form as it relates to [H]. He points out the document is a copy and that he has no recollection, in fact, he emphatically denies that he signed a form relating to [H] and he has concerns about the authenticity of the copy. He made a suggestion that perhaps his signature has been copied.
7.Those issues, of course, could be dealt with much more efficiently had the original forms been available and, of course, they could have been available through subpoenaing the school records and having the documents produced but, as it is, I have the photocopies which are difficult to read and in respect of at least one of them, the genuineness is called into doubt.
8.But I am satisfied, beyond reasonable doubt, that the husband signed one set of forms, perhaps entitled Application for Admission, relating to [M]. I am also satisfied beyond reasonable doubt that at the time the forms were signed he did so on the basis that the forms did nothing more than reserve a place for the child, [M], at [School C] which the parties might at some stage in the future, if they agreed upon it, take up for the child. I accept his evidence that that was the basis upon which the children’s mother put the document to him for signature.
9.Correspondence from at least early in 2007 corroborates the father’s understanding. …
…
11.The mother ought to have been in no doubt by reason of those two emails that the father was not consenting to the children moving from [School A] to [School C]. Those emails are consistent with the father's evidence in this case that the document signed by him in November 2006 was signed as a reservation of a spot for [M] at some time in the future. I think I can take judicial notice of the fact that many people enrol their children in private secondary schools at a very early age to secure a place when they become of age to attend that school.
…
14.Section 70NAC of the Act defines the meaning of the word "contravened" in the phrase "contravened an order" as it is used in the Act. A person is taken for the purposes of the Act to have contravened an order under the Act affecting children if, and only if, where the person is bound by the order, he or she has intentionally failed to comply with the order or make no reasonable attempt to comply with the order or otherwise he or she has intentionally prevented compliance with the order by a person who is bound by it or aided or abetted a contravention of the order by a person who is bound by it.
15.It was not suggested in submissions that the mother did not know that she was bound by the order that the father now alleges has been breached. I am satisfied, beyond reasonable doubt, that she has contravened the order. I am satisfied that she has contravened the order because it was clear that the father was not agreeing to the children changing school at any time, that the form proffered to him was signed on the basis upon which she proffered it, namely, that it was to reserve a position at some time in the future at [School C] for [M], and I am satisfied that she intentionally failed to comply with the order because subsequently she changed schools, [M] at the commencement of 2007 and [H] subsequently at the end of 2007 in circumstances where she knew:
a)that an application to the Court for that very purpose had failed; and
b)the father did not consent to such a change.
16.I am satisfied that she has contravened the order. I am not satisfied that there is any reasonable excuse for contravening the order.
17.I propose that you collect the children from school now. That they be brought to the Court for the purposes of being interviewed by a family consultant who will then provide an oral report to the Court as to the children's wishes about their school.
That judgment was delivered at 10:42am. Following judgment, the Federal Magistrate asked Mr Cooper, the solicitor for the mother, whether he objected to the course of the children being interviewed and he said not. It appears the solicitor then went to collect the children and after they had seen a family consultant, the matter came back before the Federal Magistrate at 4:06pm. Mr Cooper then objected to the proposition that the family consultant give evidence. After dealing with the first basis of that objection, a basis which failed, Mr Cooper said:
The second basis is that there is no application to vary the orders. If your Honour is considering to vary the orders as a consequence of this evidence … then my client ought to be put on – ought to be allowed to put on evidence, particularly from the school.
Subsequent exchanges between Mr Cooper and the Federal Magistrate led to the position that Mr Cooper recognised that his complaint was not so much that the family consultant’s evidence was inadmissible, but merely that there should be other evidence allowed in. The family consultant then gave evidence, following which, to permit the mother to put on further evidence in respect of a proposed variation of the “primary parenting order”, the matter was adjourned to Friday, 23 May 2008.
Mr Cooper then said that he also wished to adduce further evidence on the application for contravention. He said “that is the document which is exhibit 2, we have material now which says we have the original of that document”. Jarrett FM said that he had already determined the contravention application. He said that he would not permit any further evidence, because he had made his ruling in respect of it. Mr Cooper pointed out that no orders had been made, to which the Federal Magistrate stated that he had made findings that the orders had been contravened and the application had been determined.
When the matter returned before the Federal Magistrate on 23 May 2008 Mr Cooper renewed his application to put further evidence before the court in respect of the contravention. The learned Magistrate’s decision in respect of that application, which he refused, is the subject of the second ground of appeal which will be discussed later. Nothing that transpired on 23 May 2008 is relevant to the argument relating to ground 1, save in the sense that Mr Cooper, who appears for the mother on the appeal, seeks to persuade me to admit further evidence, which includes that which he sought to put before the Federal Magistrate. The application for leave to adduce further evidence will be considered shortly.
In support of ground 1, in his outline of argument Mr Cooper said:
4.2Jarrett FM’s judgment was not discretionary. His Honour was required to make findings pursuant to the standard of proof set out in section 70NAF of the Act and, given that a bond was ordered, findings beyond reasonable doubt.
4.3Given the evidence that was before the Court as particularised in the in the Notice of Appeal, a court properly informing itself of the standard of proof required (for which His Honour made no error) could not find as his Honour did.
However, neither in his written submissions nor oral argument did Mr Cooper point to any errors of logic, to any non-sequitur or to any unchallenged evidence to support the proposition that the conclusion to which the Federal Magistrate came, was not open. No submissions were made as to any differences between satisfaction upon the balance of probabilities as opposed to beyond reasonable doubt.
Insofar as the ground asserted that the weight of evidence required a determination on the balance of probabilities that the mother had made a reasonable attempt to comply with the order, true it is that, by virtue of s 70NAF of the Family Law Act 1975 (Cth) (“the Act”), the question of whether the mother had a reasonable excuse for contravening the relevant order was to be determined according to the balance of probabilities. However, again, there were no submissions which endeavoured to analyse the reasoning process employed by the learned Magistrate.
Mr Cooper did seek to make a point of the length of time that elapsed between the schooling changes and the bringing of the father’s application. The contravention application of the father was filed in April 2008. It asserts that the older child’s schooling was changed on 30 January 2007 and that of the younger child on 9 October 2007. Of itself the delay does not mean that the only inference that could be drawn supported the mother’s case about the father’s agreement to the change of schools before either change was made. Indeed, against such an inference, Jarrett FM noted in his reasons for judgment that though the father had made it clear in an email that he did not agree with the change of school, he “was prepared to see how the boys went at the school”.
I am not satisfied that, in finding the contravention proved beyond reasonable doubt and, possibly according to the same standard, but at least on the balance of probabilities, that there was no reasonable excuse, the learned Magistrate made any appellable error.
The further evidence
In affidavits of which the mother sought admission, the mother deposed that, after she had collected the signed enrolment applications from the father, she had faxed them to School C and, having done so, placed the originals with other personal papers. She deposed that she had then moved the original documents and when asked by her lawyers to locate them, could not. However, after the father gave evidence before Jarrett FM emphatically denying signing a copy of what was Exhibit 2, the mother asked her partner to make a further attempt to locate the signed documents. He was successful and delivered the two pages to the mother during the adjournment while the children were being collected and brought to the family consultant. That, of course, was after Jarrett FM had delivered reasons in respect of the Contravention.
The enrolment applications contain the proposed year of entry for both children as 2007.
The mother also annexed to one of her affidavits psychological assessments of the children. She deposed that she had submitted to Jarrett FM that that sort of evidence ought have been before him. The reports make recommendations in relation to the education of the children, which the mother connects with her claim that School C, (but not School A), has the facilities to meet those recommendations. The mother also deposed to the children’s progress at each of the schools and to alleged untruths told by the father in Court, not only about the enrolment of the children in schooling but about the mother’s own schooling. Other evidence of the mother related to the events and circumstances in which she came to seek to change the children’s schooling. She made assertions about statements and actions of the father, the children and school teachers.
Finally, the mother seeks to rely upon an affidavit by Adrian Lacroix, a forensic document examiner. He examined the enrolment applications. He concluded that a telephone number and email address, which the mother said were the father’s and in his handwriting, were not original entries. That is, they were inconsistent with being by the writer of the other undisputed photocopied writings on the page. He further concluded that the additional writing was that of the writer of the “[Mr Chalk] specimen writings”.
In relation to signature and date entries and the lettering in each name “[Mr Chalk]” in three positions on the documents, Mr Lacroix opined that the questioned signatures were all by the writer of the “[Mr Chalk] specimen signatures”.
In CDJ v VAJ (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ said of the discretion to admit further evidence:
…Its principle purpose is to give to the Full Court discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous.
One notes that their Honours referred, not to errors in findings which went to support the orders under appeal, but to the order itself being shown to be erroneous. The further evidence might, among other things, show that, in saying that the mother might have subpoenaed School C for the production of the original enrolment applications, the Federal Magistrate was wrong in that School C, on the mother’s evidence, only had facsimiles. But the finding was hardly critical to the end result. The most favourable view is that the possible error in the Federal Magistrate’s finding might offer some impetus to permit some of the further evidence. Also, the fact that the learned Magistrate commented on the absence of the original applications and the deficiency in the copies, might encourage receipt of the further evidence, at least in so far as it related to the original enrolment applications.
On the other hand, it does not seem to me that the mere receipt of the original applications (and Mr Lacroix’s evidence) means that there can no longer be any contention about the circumstances in which various information was inserted on those original applications. In particular, it would not seem to render any claim by the father, that the years of enrolment were not completed when he signed the forms, unmaintainable.
I note also that, irrespective of what happened with the application forms, in coming to his ultimate conclusion that the mother had contravened the order, the Federal Magistrate placed some reliance upon email communication by the father to the mother about his attitude to the question of a change in the children’s schooling, which emails were sent after the date upon which the enrolment forms were signed.
The other material relating to the contravention put forward by the mother could have been put before the Federal Magistrate at hearing.
Thus, I am not satisfied that receipt of the further evidence demonstrates that the orders under appeal were erroneous and I would reject the application for leave to adduce the further evidence.
That the learned Magistrate wrongly refused to allow the mother to reopen her case, to put further evidence before the Federal Magistrate
The transcript of 23 May 2008 discloses that Mr Cooper advised Jarrett FM at the outset that he wished to file two affidavits which (from the context of discussion) went to the question of variation of the primary parenting order. But Mr Cooper indicated that before the court dealt with that question he wished to make two applications. The first was to reopen in relation to the contravention proceedings on the basis of s 43 of the Evidence Act 1995 (Cth), relating to cross-examination of witnesses about prior inconsistent statements. However, Mr Cooper also said:
I appreciate that your Honour has entered judgment, and that may have an effect on the application.
Jarrett FM enquired of Mr Cooper whether he had any authority that demonstrated that “once the Court has decided an issue, by proceeding to judgment and giving reasons, it can thereafter reopen…”. In discussion that followed, Mr Cooper and Jarrett FM both concluded that those cases that each had located related to circumstances where the application was made prior to “judgment”. Mr Cooper then made a submission (his second “application”) based on Rule 16.05(2)(b) of the Federal Magistrates Court Rules 2001 (Cth), which rule provides that the Court may vary or set aside its judgment or order after entry if the order was obtained by fraud. Mr Cooper said:
The evidence I wish to bring to support that application, firstly, is that he has executed the document. We have it in original form. Secondly that the document, on its face, says exactly when [H] and [M] are to be enrolled in the school, and on that particular page, and in his own handwriting are notes, assistance to fill out the form.
FM Jarrett remarked that it had not been put to the father that the form contained such detail. He further said:
…indeed, in his evidence, he said the front page of the form, which contains the bit about when the children are to start, or at least the one that he signed, [M], was blank.
…
Well, your client’s chosen to run this case on a particular basis. I see no reason to permit her to depart from the basis upon which she has run it.
…
I found that your client misled him about the nature of the documents. That’s the positive finding I made.
The transcript in the appeal book indicates that, after the Federal Magistrate heard what Mr Chalk wished to say about the application to reopen, he delivered judgment. At the initial hearing of oral argument before me, that judgment was not available. Reluctant to decide an appeal based on a contention that the Federal Magistrate had wrongly refused to permit the mother to reopen her case on the contravention, without the very reasons for that decision, I adjourned the hearing of the appeal to see if the reasons could be obtained. That proved to be no easy task, but reasons were eventually received on 7 January 2009. Copies were provided to the parties and I took further submissions on 23 January 2009.
The gravamen of the Federal Magistrate’s decision is contained in the following paragraphs:
5.… The position here is that I have determined the contravention application inasmuch as it requires a determination of whether the mother has contravened the orders and whether that contravention is without reasonable excuse.
6.What remains to be determined in the case is the sanction that ought to be imposed, if any, and what other orders and what other powers available to the Court under Division 13A of the Family Law Act should be exercised. The attempt to adduce further evidence in the re-opening sense is directed of course to the findings of whether there has been a contravention or whether it has been without reasonable excuse.
7.I was taken to no authority and I could find none myself which suggested that after judgment has been given the Court still retains a power to re-open or permit a party to re-open and lead fresh evidence. That there are not any authorities on that point is not surprising because once the Court has discharged its function it is of course functus officio in respect of those particular issues.
8.The relief that might be available to set aside the orders needs to be found in either the Family Law Act or the rules of this Court or perhaps the Family Court in a way in which I will explain shortly. It seems to me that the application on the first basis must fail.
9.I turn then to r.16.05(2)(b). That is an example of a rule of this Court which provides for an otherwise regularly entered judgment to be interfered with after the judgment has been passed and indeed perhaps even after it has been entered.
10.Similar provisions exist in the rules of many other Courts and apart from those rules the only other way to interfere with a judgment is on appeal. The Full Court in this case, of course, retains a discretion under the Family Law Rules to admit what might be described as fresh evidence
In his written submissions and at the initial hearing of the appeal, Mr Cooper essentially reran the arguments that he had put before the Federal Magistrate. Those arguments seemed to me to have no real merit and indeed not to really take up what appeared to be the gravamen of Jarrett FM’s ruling.
Section 43 of the Evidence Act essentially relates, not to the question of whether or not a case ought be reopened but, as earlier seen, to circumstances in which a witness might be cross-examined about a prior inconsistent statement, albeit that statement might subsequently be tendered in a reopening for that purpose. While cross-examination and/or tendering of the original applications might have been Mr Cooper’s purpose in seeking a reopening, s 43 was not by any means determinative of whether or not the reopening could or should be permitted.
As to Rule 16.05(2)(b) of the Federal Magistrates Court Rules, no fraud had been established but was merely asserted by Mr Cooper. The mere assertion did not invoke an application of the rule as if the assertion had been established.
In my view, the learned Magistrate correctly dealt with the arguments put to him reliant on s 43 of the Evidence Act and Rule 16.05(2)(b) of the Federal Magistrate Court Rules.
However, in my view, in concluding that he did not have power to reopen, the learned Magistrate was in error.
Mr Cooper submitted so on the reconvened hearing. Although ground 2 as drawn focuses on s 43 of the Evidence Act, it may be broad enough to encompass this ultimate argument. In any event, it is a point of law.
Part of the learned Magistrate’s error may be attributed to a failure to distinguish between the delivery of findings and reasons for those findings, as opposed to the making of an order, whether formally entered or not. As Barwick CJ said in R v Ireland (1970) 126 CLR 321 at 330:
…In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the Court’s reason for decision…
In Halsbury’s Laws of Australia it is said in Volume 13 EVIDENCE [195-8150]:
The court has a discretion to allow a party to re-open its case to admit fresh evidence. This may occur at any stage of the trial including after the trial has concluded. Different considerations apply to the decision to re-open and the process in reconsideration once the case has been re-opened. Where the hearing is complete, the primary consideration is the prejudice to the other side. Where reasons for judgment have been delivered, the appeal rules relating to fresh evidence provide a guide as to the manner in which the discretion to re-open should be exercised.
In S & F [2003] FamCA 603, an unreported decision of the Full Court of the Family Court (Finn, Coleman and Warnick JJ), their Honours said:
25. It is sufficient that we say that it was certainly within his Honour’s discretion to permit the case to be re-opened to enable the wife to adduce further evidence, not only at any time prior to the delivery of his reasons for judgment, but also at any time thereafter up until he had made his final orders on 13 July 2000. As was said by the Full Court (Fogarty, Baker and McCall JJ) in Swaney and Ward (1988) FLC 91-928 (at 76,718):
A trial Judge may hear further evidence, amend his or her reasons for judgment or change such reasons altogether at any time prior to the final issue of the order from the Court…
In Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 their Honours Brennan, Dawson, Toohey and Gaudron JJ said at 265:
“…the orders … had not been entered when the appellant made his application for re-opening. It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected. … The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. … (emphasis added, footnotes omitted)
It may be that upon a re-exercise of discretion that a re-opening would have been refused. But, thinking there was no discretion, the learned Magistrate never exercised any. In my view, for this reason, the appeal should succeed.
Though through the focus of an appeal and time for reflection, I have identified error in the learned Magistrate’s approach, I acknowledge that that mistake occurred during an appropriately prompt disposition by him of a contravention application and the variation of a parenting order, in respect of an unusual point, in relation to which Jarrett FM was not assisted by reference to authority.
Did the learned Magistrate err in varying the June 2004 orders in respect of schooling, when he ought have found that the parents had jointly consented to the children attending School C and erroneously found that a change of primary schooling constituted sufficient change of circumstances to warrant a variation of the primary children’s order
When on 23 May 2008 Jarrett FM, after dealing with the question of what orders should be made on the contravention application, then moved to consider the question of variation of the current parenting orders. His Honour said:
26.… although s.70NBA of the Act was introduced to overcome the previous difficulties attendant upon contravention applications of being unable to vary parenting orders where variations were called for, the introduction of that section does not obviate the Court from considering all of the matters that are ordinarily considered on a parenting application.
Shortly after, his Honour, noting that that rule contained in In the marriage of Rice & Asplund (1979) FLC 90-725 still applied, said:
29.There are final parenting orders in place between these parties. Before I make an order which varies those parenting orders I need to be satisfied that there has been a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of these children since those orders were made.
30.There is a change in circumstances for these children. They have changed school. Originally they were attending [School A], they now go to [School C]. [M] went first and then [H]. That is a significant change in circumstances, particularly in my view given the circumstances in which the change occurred, that is, against a background of two agitations of an application by the wife for a change in the parenting orders to permit the change of school – one before either child had gone to [School C] and the second after [M] had gone to [School C] – and in the face of the father’s opposition to that move. In my view there is a significant or material change in circumstances.
His Honour then embarked upon a consideration of matters that he was required to address by the terms of Part VII of the Act, in particular, factors relating to the best interests of the children. During the course of this examination, Jarrett FM referred at length to evidence of the court counsellor who had interviewed the children a few days beforehand, that evidence being to the effect that both boys would have preferred to be schooled at School A. Jarrett FM then concluded:
53.Having regard to the evidence of the wishes given by Ms Densmore as to the wishes of these children, having regard to the mother’s evidence that really her concern is that the children should not be moved because of the things that they would be giving up at [School C] rather than there being any particular identifiable detriment to them returning to [School A] and having regard to the fact that on my findings made on Wednesday they went to [School C] as a result of the unilateral action of the mother I order:
(1) That the orders made in the Family Court of Australia at Sydney on 25 June 2004 be varied as follows by inserting the following:
“2AThat the children [M] born … November 1997 and [H] born …February 2000 return to [School A] for the commencement of Semester 2 or Term 3 however so described by that institution following the mid year holiday period 2008
2BThat the children shall thereafter remain at the said school and not be removed there from without the written consent of both parties.”
In his summary of argument, Mr Cooper argued:
6.5It is not submitted Jarrett FM did not follow the proper reasoning. His Honour fell into error be finding that a change of school is a significant change in circumstances. A change of school is an incident of the vicissitudes of life and should never be the basis upon which a variation power is enlivened.
That submission may hold some strength as a generality, and when speaking of an application to vary an order in relation to with which parent a child lives, but it carries little force when what is in issue is an order about the school at which a child is to attend.
There is thus no merit in this ground.
Conclusion
Notwithstanding that there is no merit in ground 3, the findings in respect of the contravention, particularly as to whether or not the father consented to the change of school, are, (and, as seen, were considered by Jarrett FM) closely linked to the decision about alteration of the primary parenting order. Therefore, the appeal against both orders succeeds. As the basis of success involves a failure to exercise a discretion in respect of further evidence, which if received may be the subject of cross-examination and evidence in response, the applications should be remitted for rehearing.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick
Associate:
Date: 29 January 2009
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