CARMODY & MASSEN

[2018] FCCA 2386

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARMODY & MASSEN [2018] FCCA 2386

Catchwords:
FAMILY LAW – Rice & Asplund question – examination of the scope of the significance of change of circumstance warranting the setting aside of consent orders previously made – relevant date upon which change of circumstance must arise is date of trial – whether child’s wish to live with the other parent “forever” gives rise to a significant of circumstance – child’s wishes must be viewed in context – application dismissed.

COSTS – Application ore tenus for costs – applicant unrepresented until trial of the proceeding – did not incur legal costs – no costs specifically referable to respondent’s relocation application – no costs thrown away by reason of respondent’s abandonment of relocation application – applicant did not advance submissions in support of a costs order – costs not awarded.

Legislation:

Family Law Act 1975, ss.60CC(3), 117(2A)

Cases cited:

In the marriage of Burton, G. and Burton, M. (1979) FLC 90-622
In the marriage of F & N. (1987) FLC 91-813

In the marriage of Houston, D.J. and Sedorkin, B.J. (1979) FLC 90-699

In the marriage of Newling, J.W. and Newling, B.E. (1987) FLC 91-856

In the marriage of Rice, M.A. and Asplund, C.J. (1979) FLC 90-725

Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136
University of New South Wales v Moorhouse (1975) 133 CLR 1

Applicant: MS CARMODY

Respondent: MR MASSEN

File Number: MLC 6156 of 2012

Judgment of: His Honour Judge Wilson

Hearing date: 24 August 2018

Date of Last Submission: 24 August 2018

Delivered at: Melbourne

Delivered on: 28 August 2018

REPRESENTATION

Counsel for the Applicant: Mr D Cash

Solicitors for the Applicant: James D Mapleston

Counsel for the Respondent: Mr G Glezakos

Solicitors for the Respondent: HEP Steel

ORDERS

1. The proceeding is dismissed.

2. There is no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Carmody & Massen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6156 of 2012

MS CARMODY

Applicant

And

MR MASSEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 15 December 2014 following a six-day contested trial before a judge of the Family Court of Australia, the parties resolved their differences in respect of parenting on the terms of minutes of consent orders made that day.  

2. The orders were comprehensive, principally making provision for the mother and father to have equal shared parental responsibility for [X], born 2008, for [X] to live with the father and for [X] to spend time with the mother according to a regime prescribed by the terms of those orders. 

3. On 18 October 2017 the mother commenced a proceeding in this court, notwithstanding the resolution of the proceeding about the same subject matter in the Family Court of Australia.  She said that discussions then on foot between the mother and the father raised in her a fear that the father would relocate interstate taking [X] with him.  She also sought orders for [X] to live with her.  The father disputed the imminence of any such relocation, contending in this proceeding that any discussions about relocation were imprecise, they were ambit in nature, and they were exploratory only, essentially inviting comment from the mother about the feasibility of the father’s proposal for [X] and him to move interstate. 

4. On 23 October 2017, on the first return of this proceeding, I made orders restraining the father from relocating to Tasmania or interstate. 

5. In his response to the mother’s application in this court, the father applied formally for orders permitting him to relocate interstate.  

6. After two interlocutory appearances before me, I fixed this proceeding for trial on 24 August 2018.  Consistent with the urgency of the application, on 22 November 2017 family consultant Ms J conducted a child inclusive s 11F conference and provided a report. 

7. The trial proceeded before me on 24 August 2018.  Soon after appearances were announced, the father’s counsel announced that the father did not press his application to relocate and the trial thereafter proceeded only on the mother’s application for [X] to live with the mother.  

8. The father opposed the mother’s entitlement to bring this proceeding in the first place, contending that she had not filed evidence to enliven the observations espoused by the Full Court of the Family Court In the marriage of Rice & Asplund.[1]  The parties joined issue on whether it was in the best interests of [X] for me to grant the order sought by the mother for [X] to live with the mother. 

   [1] (1979) FLC 90-725

Synopsis

1. For the reasons that follow, in my judgment the mother did not meet the requirements set out in Rice & Asplund.  Even if she had, in my judgment there was no proper evidence by which I could conclude that it was in [X]’s best interest for him to live with the mother. 

Short factual scenario

1. Before turning to the competing legal contentions, it is necessary to briefly say something about the facts that were not in contention in this case. 

2. Following a six-day trial before a judge in the Family Court of Australia, on 15 December 2014 the parties (including the independent children’s lawyer) consented to the court making orders most presently relevantly providing that the mother and father had equal shared parental responsibility for [X], that [X] would live with the father and spend time with the mother. 

3. [X]’s parents have subsequently formed other domestic relationships.  Under existing arrangements for [X] to live with his mother and his father, [X] presently spends time with other children from his parents’ current partners’ earlier relationships as well as his parents’ present partners.  

4. The father gave evidence in an affidavit affirmed 20 October 2017 that he explored the concept of moving to Tasmania because of employment opportunities and a wish to move closer to his partner’s family in Tasmania.  The father did not press his application to relocate on the day of trial.  Previously, the mother cited the father’s expressed intention to move to Tasmania as grounding “a significant change in circumstance” for the purposes of overcoming the embargo on re-agitating a parenting case earlier resolved, as stipulated by the decision in Rice & Asplund.  

5. In her evidence before me, the mother said many times that the relationship between the mother and father had become worse since the making of the orders in December 2014.  When pressed, she hinted at illustrations of what she said was the deterioration in the relationship between the mother and the father.  However, she admitted in cross-examination that despite the filing of extensive affidavit material, she had offered nothing of substance in the way of evidence to support her contentions of the deterioration in the relations between the mother and father since the making of the orders in December 2014. 

6. Whether or not that could be excused by the fact that the mother did not use legal assistance to prepare her affidavits in this proceeding, the fact remained that the mother did not descend into any detail of the so-called deterioration of relations between she and the father such as to enliven the principles that otherwise called for finality of orders made in family law litigation.

7. In debate with counsel I pointed out that there was authority to the effect that the so-called rule in Rice & Asplund was no more than a collection of guidelines but it had no juristic or jurisprudential foundation that mandated its universal application.  Self-evidently it was fact-specific.  But the observations on point from that decision seemed to have become elevated to a state of statutory prescription when in truth they do little more than state the discretion reposed in a judge exercising jurisdiction under the Family Law Act to make orders that are in the best interests of the child.  At all events, whatever may be said of the so-called jurisprudential immutability of the observations in Rice & Asplund, too many decisions in the federal arena in this country have applied those observations to call into question the application of the statement from that decision, namely that a significant change in circumstance must be demonstrated before parenting orders previously made and particularly those previously agreed will be altered. 

8. It seemed to me that no evidence had been adduced by the mother to demonstrate that a significant change in circumstance in the arrangements for [X] had occurred between the making of the consent orders in December 2014 and today.  I do not accept the assertions by the mother to the effect that the father had definitively relocated to Tasmania.  He had not.  I doubt he ever seriously threatened to do so. 

9. In debate with Mr Cash of counsel for the mother, I asked him what the decided cases on this point revealed as to the point in time at which the significant change in circumstance had to be demonstrated.  In particular, I asked him whether the evidence had to bear out that point as being the date of the filing of the application or as at the date of the trial.  Mr Cash was unable to respond to the point.  I posited with him the hypothetical situation that a valid significant change of circumstance may have been apparent as at the date of the filing of the application yet for particular reasons that change did not inure as at the date of the trial.  Applying that hypothetical situation of the facts of this case, I asked Mr Cash whether (assuming the threats to relocate on which the mother in this case relied amounted to “a significant change of circumstance”) the change having presented itself at the date of the filing of the application but by reason of a change of heart by the father he no longer persisted at trial in going ahead with the threatened change, whether it was open for the court to make orders casting aside the consent agreement earlier reached in circumstances where, as at the date of the trial, there was no longer a “significant change of circumstances”?  

10. Mr Cash was unable to answer. 

11. On first principles, it struck me that the relevant date must be the date upon which the court is being asked to make the orders.  Otherwise, the point would be hypothetical and courts do not make orders based on hypothetical questions.  The High Court so held in University of New South Wales v Moorhouse[2] and the observations of the Privy Council in Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong[3] are to like effect.

    [2] (1975) 133 CLR 1

    [3] [1970] AC 1136

12. My examination of the scope of the significance of the change of circumstance warranting the setting aside of consent orders previously made revealed that the threshold was low.  They include reopening of parenting issues after final orders were made where a child uses bad language after spending time with one parent (In the marriage of Burton, G. and Burton, M.),[4] a mother’s recovery from a former mental health issue where the child did not previously live with the mother (In the marriage of Houston, D.J. and Sedorkin, B.J.),[5] a remarriage enabling a parent with whom the child did not live to provide a warm family environment (In the marriage of F & N)[6] and psychological or physical changes in a child while the child matured (In the marriage of Newling, J.W. and Newling, B.E).[7]

    [4] (1979) FLC 90-622

    [5] (1979) FLC 90-699

    [6] (1987) FLC 91-813

    [7] (1987) FLC 91-856

13. Those cases provided very little in the way of guiding principle and they seemed to be idiosyncratic applications of discretionary considerations.  I was unable to divine any meaningful expression of doctrine from any one of them except to say that proof of the circumstances in which a party might overcome the observations in Rice & Asplund are not particularly onerous.

14. Having said that, proof is in fact required.  None was offered in this case, still less was there proof on the balance of probabilities that demonstrated “a significant change in circumstance”.  I was unable to conclude that whatever change the mother relied on was a change at all let alone a significant change.  It seemed to me there was merit in the submissions of Mr Glezakos of counsel that any circumstance on which the mother relied was no different in 2017 when this proceeding was issued and August 2018 when this proceeding was tried, as it was in December 2014 when the original skirmishes between the parties were settled. 

15. That might have been enough to dispose of this case.  However, a great deal of attention was devoted by the parties to demonstrating that, in the mother’s case, it was in [X]’s best interests to make an order for [X] to live with her and conversely, in the father’s case, for the father to contend that there was no basis for ordering any change in circumstance as it was not in [X]’s best interests to accede to the mother’s application. 

16. At its highest, Mr Cash for the mother contended that the family consultant reported [X]’s wish to live forever with the mother. 

17. That observation by the family consultant caused the parties to devote a good deal of attention to [X]’s expressed wish.  No one challenged the fact that [X] actually made that statement.  The father challenged the mother’s assertion that [X] constantly made similar comments to her privately about which she gave evidence.  For present purposes, I proceeded on the basis that the only relevant evidence on point came from the family consultant.  I do not accept the mother’s statements that [X] made comments to her repeatedly along those lines.  On many issues I took the view that the mother was a witness who was determined to say only the information that best suited her case.  More than once I had to stop her from making a speech after she had earlier agreed or denied a proposition put to her by the father’s counsel.  Further, the mother gave evidence of a proposition that I found extraordinary, namely that she took the view that it was for [X]’s benefit that she explained to him why police might arrive and take [X] away if he relocated to Tasmania.  She said that, by giving [X] such an explanation, it lessened the impact of the trauma that a visit by the police might present.  In the same breath she said she took the view that explaining court proceedings to [X] was to his advantage.  Parents should shield their children from, not expose their children to, the ugly skirmishing between the parents in any court exercising family law jurisdiction.  I also took the view that the mother was more focused on her own interests rather than the interests of [X] in maintaining her application for [X] to live with her.  She appeared to me to be a long way from child focused. 

18. I make that observation despite the observations of the family consultant who gave evidence that in her view the parents were each capable of effectively parenting.

19. Unremarkably, the family consultant was invited to explain her evidence that [X] said to her that he wanted to live forever with his mother.  The family consultant said that in her view the best interests of [X] were finely balanced notwithstanding the evidence that [X] had told her that he wanted to live with his mother forever.  

20. In answer to questions from Mr Glezakos for the father, the family consultant accepted that [X]’s comment that he wanted to live with his mother forever had to be seen in context, especially in circumstances where [X] was under considerable stress when he said those words and especially where [X] presented at the interview on 22 November 2017 having experienced a sense of loss in relation to his mother. 

21. It must be said that the comment upon which the mother relied about [X] saying he wished to live forever with his mother had to be viewed in context.  I do not accept that in truth the words carried the literal attribution given to them by the mother.  It seemed to me that there was validity in the submission that the comment was most likely made in highly stressful circumstances and that it was not, literally, to be taken to convey [X]’s expression of his wish to live for all time with his mother.  It would be absurd to suggest otherwise especially as [X] grew in years and maturity.  When construed in that light and when it is recognised that the words were uttered by a nine year old at a time when [X] was under stress, then the meaning given to that phrase cannot have the permanence of application or accuracy of meaning that the mother ascribed to it.

22. As between the parties, that was the only component of s 60CC(3) of the Family Law Act (“Act”) on which the parties were in dispute.  They accepted that it was not necessary for me to trawl through and separately address each of the other elements of the subsections of that section. 

23. In my judgment, it is not in [X]’s best interest for him to move from his current arrangements with the father so that he lives with the mother, in accordance with the mother’s application to this court.  The evidence of [X]’s expressed wishes do not travel so far as to enable me to accept that he wishes to live with his mother forever. 

24. It is next necessary for me to consider the sufficiency of the arrangements that the father presently provides for [X] pursuant to the consent orders previously agreed.  

25. Nothing adverse was pointed up by the family consultant.  The father has desisted in his proposal to relocate to Tasmania.  He told me that he has employment in the state of Victoria.  He said [X] is doing well in his current circumstances.  It was the family consultant’s view that [X]’s structure and routine dominate any consideration of [X]’s best interests.  I agree.  To my mind it would orchestrate an unacceptable upheaval and disruption to [X]’s routine for him to move so as to live with the mother especially in circumstances where his current routine is stable and predictable and he lives happily with his father.  

26. The mother’s applications for [X] to live with her and those set out in the application filed 18 October 2017 are dismissed. 

27. Counsel for the mother sought an order for the father to pay the costs of this trial in view of the fact that as recently as the first day of the trial of this proceeding the father abandoned his application to relocate to Tasmania.  In opposing the making of any cost order, on behalf of the father it was submitted that up until the day of the trial of this proceeding the mother was unrepresented and that she therefore did not incur any costs.  Additionally, Mr Glezakos submitted that there were no costs specifically referable to the relocation application nor were there any costs thrown away by reason of the father’s abandonment of the relocation application.

28. I agree with the father’s contentions.  In my view, except for a few moments following the announcement of appearances, the entirety of this trial was devoted to a consideration of the mother’s application for [X] to the live with her.  No unnecessary questions were wasted trawling through the relocation application.  Any questioning about the relocation application focused on the circumstances that existed prior to the commencement of this proceeding, a factor squarely relevant to any consideration of the need to bring this proceeding in the first place.  It also raised a consideration of Rice & Asplund principles, a necessary hurdle for the mother to overcome. 

29. Not only was it not possible to quantify any costs consequent to the abandonment of the father’s relocation application, but the mother did not incur costs except for the trial and the entirety of the trial was devoted to issues relevant to the mother’s application, a matter properly brought for determination.

30. There was no substance in that costs application. In any event, no submissions were advanced, as they should have been for a costs order application, based on s 117(2A) of the Act.

1. This proceeding is dismissed.  I make no order as to costs. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:              28 August 2018