Caracini & Paglietta
[2009] FamCAFC 188
•22 October 2009
FAMILY COURT OF AUSTRALIA
| CARACINI & PAGLIETTA | [2009] FamCAFC 188 |
| FAMILY LAW - APPEAL – CHILDREN – In an appeal from the Family Court of Australia – Whether the trial judge erred in failing to dismiss the father’s application for a variation of parenting orders before a hearing on the merits – Where the mother’s response seeking the dismissal of the father’s application was framed with reference to Rice and Asplund principles – Where the trial judge was required to determine at a preliminary stage whether there was prima facie some evidence to warrant a variation of parenting orders – Where a substantial period of time had elapsed from the current orders – Where the father’s evidence alleged that the child had expressed a desire to spend more time with the father and had complained about the mother – Where the trial judge accepted that such allegations were denied by the mother – Where such matters were sufficient to dismiss the mother’s application – Appeal dismissed FAMILY LAW - COSTS – Where the appeal was wholly unsuccessful – Where it is inappropriate to make an order for costs given the financial circumstances of the parties – No order as to costs |
| Family Law Act 1975 (Cth) |
| D and Y (1995) FLC 92-501 Freeman and Freeman (1987) FLC 91-857 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 House v The King (1936) 55 CLR 499 Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 Rice and Asplund (1979) FLC 90-725 SPS and PLS (2008) FLC 93-363 Zabaneh and Zabaneh (1986) FLC 91-766 |
| APPELLANT: | Ms Caracini |
| RESPONDENT: | Mr Paglietta |
| FILE NUMBER: | SYC | 2546 | of | 2008 |
| APPEAL NUMBER: | EA | 109 | of | 2008 |
| DATE DELIVERED: | 22 October 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & O’Ryan JJ |
| HEARING DATE: | 19 August 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 August 2008 |
| LOWER COURT MNC: | [2008] FamCA 725 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Ms Paton Georgiou & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Mulvey |
| SOLICITOR FOR THE RESPONDENT: | Logical Legal Solicitors |
Orders
The appeal be dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Caracini & Paglietta is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 109 of 2008
File Number: SYC 2546 of 2008
| Ms Caracini |
Appellant
And
| Mr Paglietta |
Respondent
REASONS FOR JUDGMENT
Introduction
On 5 May 2008 the father filed an application for final orders in the Family Court of Australia. That application sought, in effect, the reconsideration of final parenting orders made on 12 November 2001 in relation to a boy, A, born in June 1997, now twelve years old.
The mother opposed the father’s application. In her response, she sought that the father’s application be dismissed prior to a hearing on the merits. Her argument was framed by reference to a well known decision of this Court, Rice and Asplund (1979) FLC 90-725. It was submitted that there had not been such a significant change in circumstances to justify a trial.
On 11 August 2008 Le Poer Trench J dismissed the mother’s response, effectively enabling the father’s application to proceed to a hearing.
While such description may seem harsh, it is our view that the applications of the mother before the judge and in this appeal are misconceived.
Background
Given the limited scope of this appeal, it is not necessary to provide any more than a brief summary of the parties’ relationship.
The parties married in 1995 and separated in 1998. Their divorce was finalised in 2002. A is the only child of the marriage.
The mother later commenced a relationship with another man. She and her partner also have a child, born in 2006.
As we have already noted, final parenting orders were made in 2001, nearly eight years ago, in relation to A. Those orders were made by consent, although the agreement was reached after a defended hearing had commenced.
The orders provided for a stepped program of contact between A and the father, which moved to the current arrangement where the child spends each alternate weekend and part of every Tuesday after school with his father. Other orders provided for special days and holidays to be shared.
It was agreed that the child “reside with the mother”. The orders which the father now seeks are, essentially, for an equal share of parental responsibilities, including orders for an equal shared time arrangement on a week about basis.
Grounds of appeal
The mother’s notice of appeal contains some eleven grounds. However, they fall into three broad complaints directed at the exercise of the discretion of the trial judge:
· First, that the trial judge “erred in finding that there were sufficient grounds to entertain an application to vary an earlier custody order”;
· Secondly, that his Honour erred in “attributing undue weight to the evidence” of the father and, consequently, too little weight to the evidence of the mother,
· Thirdly, the mother alleges that she was denied natural justice because of the trial judge’s consideration of matters raised in the father’s second affidavit (filed 6 June 2008), to which the mother did not have an opportunity to make submissions or give evidence.
Principles
We will first repeat the well known appellate principles related to appeals from discretionary judgments which apply in this case.
The law is well settled and does not require extensive restatement. The Full Court (Dixon, Evatt and McTiernan JJ) in House v The King (1936) 55 CLR 499 stated at 504-505:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
Secondly, although equally well known, we set out part of the decision in Rice and Asplund. That decision involved an appeal from custody orders (as they were then described) and an application to change earlier orders. In her reasons for judgment, Evatt CJ said of such applications at 78,905-78,906:
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. …
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 change in circumstances, then the issue of custody is to be determined in the ordinary way. …
In SPS and PLS (2008) FLC 93-363, Warnick J considered at length the application and scope of the rule in Rice and Asplund. His Honour noted that:
1.The ‘rule’ in In the Marriage of Rice and Asplund (1979) FLC 90-725 - (at least, in one of its shorter formulations) that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing. Both these qualifications to the ‘rule’ arise for consideration in this appeal.
For the purpose of discussing the arguments in this appeal, other parts of the judgment in SPS and PLS are of assistance and we will set them out at some length:
48.In my view, reflection on the rule shows that:
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.
(iv)Discussion in terms that the rule may be applied as a ‘preliminary matter’ or the primary application be first heard ‘on the merits’ may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with ‘on the merits’.
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)‘Shorthand’ statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
…
70.But the concern is that to proceed in the circumstances under discussion to a “full hearing of a custody dispute” may cause the threshold question to fade completely away. This observation may explain what the Full Court said in Bennett (at 78,262 - 78,263):
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 on the basis that no change in circumstances have been shown.
…it seems to be almost impossible to argue that if a trial Judge has concluded that, in the interests of a child, there should be a change in custody, such a decision should be set aside upon the basis that there has been no sufficient change of circumstances. …
71.This statement seems equivalent to saying that the rule in Rice and Asplund need not be applied.
72.I would put the position a little differently. While I have said that the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
73.There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
74. In summary:
·The rule in Rice and Asplund is generally expressed – as a rule to be applied as a preliminary matter;
·If applied as a preliminary matter it may achieve all its purposes; and
·If applied at the end of a full hearing of parenting issues, the rule cannot achieve all its ends, but can achieve some and ought still receive consideration. However, its force may be diminished.
(original emphasis)
We agree that there is no principle that the so called rule should never be considered prior to the hearing on the merits, but if applied at that stage it may amount to an application based on limited evidence.
It is of interest to note here that the transcript reveals that the solicitor for the mother described the application as one of “summary dismissal”.
(Transcript 11/08/08, p.1) For that reason, we refer to the principles of summary dismissal, this we perceive being in effect the remedy sought by the mother’s application before the trial judge, although argued as a Rice and Asplund application. In Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541, Kirby J stated:
The approach to be taken by the Court to the Commonwealth’s application for summary relief is not in doubt:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or in advancing a claim that is clearly frivolous or vexatious;
3.An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. … ; and
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(footnotes omitted)
Reasons for judgment
Given the preliminary nature of this hearing, it is unsurprising that the trial judge’s reasons for judgment are brief.
After setting out the nature of the dispute and a short extract from Rice and Asplund, Le Poer Trench J then outlined the issues which the father deposed as evidence of a change in circumstances warranting a reconsideration of the 2001 consent orders. As one aspect of the mother’s appeal concerns his Honour’s findings in relation to these issues, it is necessary to set out this part of the reasons in full:
4.…The father in his affidavit material outlines a number of changes which have occurred over that time. Firstly, [A] is now 11 years of age. He is in fifth class at school and will commence in year six next year. [A] has expressed to his father dissatisfaction with the current arrangement. More importantly in paragraph 17 of his affidavit the father says this:
‘[A] has told me that his mother and [her partner] regularly argue in front of him and [the partner] has thrown objects during these arguments towards his mother and these objects have narrowly missed [A]. [The mother’s partner] said to [A] ‘Your dad is not a bad person; I don't blame you for wanting to live with him because your mother is a fucking bitch.’ His mother said, ‘When your father goes I hope you are going to sell his house.’ I reported this matter to DOCS who documented this matter.’
5.The conversations and actions are denied by the mother and her partner. In addition, since 2001 the mother and her partner have had a child born to their relationship and that child is now about two years of age. The mother says that there is a good and close relationship between her son with the partner … and [A] and that [A’s] absences from the house are noted by the younger child who appears to be disturbed by those absences. She has a concern for the development of the brothers’ ongoing relationship if [A] was to spend more time with his father.
6.Since the orders were made in November 2001 there has been a substantial change to the Family Law Act. With effect from 1 July 2006 the Act now requires that:
In circumstances where an equal shared parental responsibility order is made the Court must consider making an order for equal time for the child or children to spend with each of the parents.
7.That was not a provision which was in operation in 2001 when the parties litigated the case. I should say at this stage that in my experience it is an unusual circumstance for an application to be made in the nature of that being pursued today. It seems to me that if the application is to have success it really has to establish that there is very little or no benefit to flow to a child of any changed orders to those that currently exist or very little or no benefit to flow to the child from the Court re-hearing matters relating to the time the child spends with each of his or her parents.
8.These applications, commonly referred to Rice & Asplund applications, are generally dealt with as part of a final hearing. Nothing prevents the mother in making further applications for the proceedings to be dismissed but at the very least it seems to me at this time such an application is premature. Given the changes which have occurred since 12 November 2001 I would not dismiss the father’s application. Consequently, I will today dismiss the mother’s application for the father's application for final orders filed 5 May 2008 to be dismissed.
His Honour then considered the question of the costs of the hearing. It is sufficient for our purposes to note that costs were reserved.
Submissions on appeal
As we have already identified, the mother’s appeal is directed to three broad complaints:
1. Weight given to the parties’ evidence;
2. Natural justice; and
3. Misunderstanding of Rice and Asplund.
It is important to emphasise that the learned trial judge was not determining the merits of the father’s application. Rather, his Honour was asked to consider, at a preliminary stage, whether there was prima facie some material which would support the father’s application so that when the principles of Rice and Asplund were applied, it could be seen that a court may vary the orders in the child’s best interests.
Issues of weight
As is clear from the reasons for judgment which we have extracted above, the trial judge declined to summarily dismiss the application largely because:
· A is now eleven years old;
· On the father’s evidence, A has expressed a wish to spend more time with his father; and
· On the father’s evidence, complaints were made by the child about the mother.
His Honour also referred to the substantial changes in the provisions of the Family Law Act1975 (Cth) (“the Act”) as of July 2006, with the inclusion of an equal shared parenting presumption.
It was the mother’s case that even cumulatively, such matters were not sufficient to indicate that the father’s application warranted consideration. It was submitted that his Honour made an appealable error by finding that the changes asserted by the father “amounted to something more than what would occur by the passage of time and in the usual course of human activity”. (Written submissions, [32])
In relation to the first matter, the solicitor in the appeal submitted that the fact that a considerable amount of time had elapsed was not sufficient to warrant reconsideration of the orders. In support of this submission, she relied upon the decision in Zabaneh and Zabaneh (1986) FLC 91-766 where Evatt CJ (with whom Fogarty J agreed) stated at 75,587:
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Her Honour continued:
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.
The mother’s solicitor submitted that children will always get older after final parenting orders are made, and that this alone is not sufficient to warrant a reconsideration of the orders. In support of this contention she also referred us to the decision of the Full Court in Freeman and Freeman (1987) FLC 91-857.
Counsel for the father submitted that it was apparent from Le Poer Trench J’s reasons that his Honour considered factors more than simply the passage of time. Counsel further submitted that at the time the orders were made, A was only four years old and “unable to properly convey his wishes pertaining to the amount of time he spent with each parent”. (Written submissions, [5])
The second complaint agitated by the mother’s solicitor was that the trial judge erred in placing too much weight on the father’s assertions (contained in his affidavits filed 5 May 2008 and 6 June 2008) that A was dissatisfied with the current parenting arrangement. The father’s evidence related to a telephone conversation between the child and the father on 7 February 2008 and a conversation between them in person “in or around mid February 2008”.
It was submitted that:
9In relying on that evidence the Judge erred in attributing too much weight to the alleged dissatisfaction of the child in circumstances where the material of the mother in reply explained the two alleged incidents and deposed to the child generally being well settled in his community and in his routine which has been in place since the Orders were made seven years ago…
10The Honourable Judge erred in relying on inconsistent evidence of the father who in a second Affidavit in reply pleaded that the child complains of not spending more time with him ‘every Tuesday when I pick him up from school. [A] gets upset every Tuesday and the weekends I have him when he has to leave to go back to his mother’s residence’…
The solicitor for the mother submitted in the appeal that it would be expected that an applicant would put all of the evidence in support of an application in the first affidavit accompanying the application. Consequently, it was submitted, little weight should be placed on further evidence in an affidavit in reply by the father.
Furthermore, it was submitted that the matters deposed to in the father’s second affidavit were non-specific and not particularised. It was said that unless the father could show that the child’s behaviour had changed dramatically between May, when the first affidavit was filed, and July, when the second was, the trial judge should have placed little weight on the father’s second affidavit. To the extent that the father wished to rely on the child’s statements illustrating a supposed dissatisfaction, they should have been particularised at the first opportunity.
At this point it is relevant to note that in her own affidavit filed 6 June 2008 the mother raised some matters which could indicate that there are some issues sufficient to warrant reconsideration of the parenting orders. In particular, she deposes to conversations with A where the child has expressed concern about his father’s health and stated: “Mum, I’m so worried about Dad. It makes me upset that he’s sick and he has to be in hospital”. (Affidavit of mother, 06/06/08, [49])
Obviously, although it is the father’s application which has prompted a reconsideration of the parenting orders, this does not necessarily mean that if different orders are made they will be in the terms he seeks.
Finally, the mother’s solicitor submitted that the trial judge erred in considering the 2006 amendments to the Act. Correctly, the solicitor referred to s 44 of schedule 1 part 2 of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), which states:
The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.
Note: For the need for changed circumstances, see Rice and Asplund (1979) FLC 90-725.
The answer to this contention is contained in the decision of Warnick J in SPS and PLS, to which we have already referred, where his Honour noted:
86.This provision and the position that the rule in Rice and Asplund is merely a manifestation of the best interests principle, establish that the rule survives. However, its application must recognise the new legislative content in which the question is now posited and answered. This includes the objects (and underlying principles) of the Part, set out in s 60B and s 61DA which provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted, but if it is not, then under s 65DAA, the court must consider whether the child spending equal time with each parent would be in the bests interests of the child or, if such an order is not to be made, whether the child spending substantial and significant time with each parent would be in the best interests of the child.
87.While it is clear that of themselves the legislative changes introduced by the 2006 Act do not constitute a change of circumstance for the purpose of the Rice and Asplund rule, a change in relevant facts may take on a significance because of the legislative amendments that it would not have possessed before them.
The trial judge correctly applied the provisions of the Act as they were when the application was heard by him.
The natural justice complaint
The mother also complained that she was denied natural justice because she was not given an opportunity to make submissions in response to the allegations raised in the father’s second affidavit.
The mother takes issue with paragraph 4 of his Honour’s reasons which extracts paragraph 17 of the father’s affidavit in reply. It is the mother’s case that she should have been given the opportunity to “put on evidence not only in denial and traversing the allegation but also putting her innocent explanation” of the alleged fight between herself and her new husband. (Written submissions, [21])
Counsel for the husband correctly submitted that the mother did not “object to the evidence tendered and subsequently admitted, despite having every opportunity to do so at trial”. In particular, although the mother’s representative raised “a number of ways to respond to the evidence…she was content with the trial judge accepting that the matters complained of were denied”. (Written submissions, [11] and [12])
Counsel referred to the transcript, where the following exchange took place between the mother’s solicitor and Le Poer Trench J (Transcript 11/08/08 pp.10 and 11):
[MS CLEARY]: …I have got this problem where the affidavits have come - I have got instructions in relation to those matters that are raised in the reply affidavit of the father’s and I am in a position where your Honour doesn’t have that information. I could put my client in the witness box to give that information, but - I am otherwise in a position of leading evidence from the Bar table, but I certainly have got instructions that the conversation…is something that what my client says is any dispute she has with her husband don’t happen in front of the child and those words about the father were simply not said by her or her husband, and your Honour will see - I think, yes, that my client’s husband is in Court.
So I could - there's a variety of courses, your Honour. I could call my client and respond to those matters.
HIS HONOUR: No, I accept that they will be denied.
As is clear from the paragraph 5 of his reasons, Le Poer Trench J acknowledged that the allegations of the father contained in his second affidavit were denied by the mother and her husband.
Determination of the mother’s application
It is the mother’s case that the trial judge “wrongly applied Full Court precedent…that a trial Judge has discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full Hearing”. This was directed to paragraph 8 of his Honour’s reasons, where the trial judge remarked that the mother’s application was “premature”. (Written submissions, [28]) In that respect, it was submitted that his Honour erred in overlooking the decision of D and Y (1995) FLC 92-501.
In D and Y, the Full Court considered an appeal from orders made by Bell J dismissing an application for custody of a child of the marriage. The application was dismissed on the basis that there had been no change in circumstances since the original orders were made by Warnick J in 1992 after a nine day hearing. In dismissing the appeal, the Full Court observed at 81,764:
In the present case, we can see no reason for criticising Bell J for exercising his discretion to require the wife to establish as a preliminary matter whether there had been a sufficient change of circumstances to justify the reopening of the issue of custody.
There had already been a nine day hearing on this issue a little more than two years previously and the actual change in custody had only occurred following the giving of the decision by Warnick J on 17 December 1992. In such circumstances we consider that a Judge would be extremely loath to reopen the issue of custody except on strong grounds and would normally require, as Bell J did, that the matter should be determined as a preliminary issue. We can see nothing about the circumstances of this case which would suggest that Bell J's discretion miscarried in making this requirement.
Clearly, the background to that decision is different to that before us. As Le Poer Trench J observed, a substantial period of time has elapsed since the original parenting orders were made. His Honour was also correct in observing that an application could be made by the mother for dismissal of the father’s application after all the evidence was filed and the issues raised by each of them had become clear.
Conclusions
There is no merit in the appeal.
Costs
Counsel for the respondent submitted that should the appeal be dismissed, the mother should pay the father’s costs. In support of this submission, counsel submitted that it was appropriate that costs follow the event given the wholly unsuccessful nature of the appeal. The appellant sought to resist any such costs order and asked that costs be reserved.
Section 117 of the Act provides that each party shall bear his or her own costs unless there are circumstances to justify the court making an order as to costs. When determining what, if any, costs order should be made, the court has regard to a number of factors including: the financial circumstances of the parties; the conduct of the parties to the proceedings; and whether any party has been wholly unsuccessful.
It seems that the solicitor for the father appeared for no fee, it was said that counsel’s fees were “privately funded”. The father is dependent on a pension and pays a small amount of child support.
The mother is currently on unpaid maternity leave and has the major financial responsibility for the child
Although we are of the view that the appeal was without merit, the financial circumstances of the parties leads to a conclusion that there should be no order as to costs. It follows that each party should bear their own costs including those costs reserved from directions hearings and the application to extend time.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 22 October 2009
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