Carriel & Lendrum
[2015] FamCAFC 43
•25 March 2015
FAMILY COURT OF AUSTRALIA
| CARRIEL & LENDRUM | [2015] FamCAFC 43 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – Where final parenting orders were made in 2010 – Where the appellant mother sought to vary those orders – Where the appellant mother’s application was dismissed by the trial judge in accordance with the principle in Rice & Asplund (1979) FLC 90-725 – Where the trial judge did not fail to take into account the full extent of the applications that were before the court and the evidence presented – Where the trial judge did not err in the weight he afforded to the evidence of changed circumstances – Where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Family Law Act 1975 (Cth) – Where it is seriously doubted that an order dismissing an application is a parenting order pursuant to s 64B of the Family Law Act 1975 (Cth) – No merit in any ground of appeal. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where the appellant mother seeks to adduce further evidence on the appeal – Where the evidence sought to be adduced, consisting of a psychiatrist’s report, was not relevant as the appellant mother’s mental state was not in issue before the Federal Magistrate at the time of the 2010 parenting orders – Where the balance of the evidence sought to be adduced does not establish error by the trial judge pursuant to the principles in CDJ v VAJ (1998) 197 CLR 172 – Applications dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent father sought his costs of the appeal – Where the appeal was wholly unsuccessful – Costs order made in favour of the respondent father. |
Family Law Act 1975 (Cth) – s 60CC
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 Miller & Harrington (2008) FLC 93-383 Newling & Newling; Mole (Applicant) (1987) FLC 91-856 Poisat & Poisat (2014) FLC 93-597 Prewett & Mann [2013] FamCAFC 130 Rice & Asplund (1979) FLC 90-725 SCVG & KLD (2014) FLC 93-582 SPS & PLS (2008) FLC 93-363 |
| APPELLANT: | Ms Carriel |
| RESPONDENT: | Mr Lendrum |
| FILE NUMBER: | SYC | 3851 | of | 2007 |
| APPEAL NUMBER: | EA | 65 | of | 2013 |
| DATE DELIVERED: | 25 March 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Kent JJ |
| HEARING DATE: | 17 July 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 May 2013 |
| LOWER COURT MNC: | [2013] FCCA 284 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kirk QC |
| SOLICITOR FOR THE APPELLANT: | Swaab Attorneys |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Freedman & Gopalan Solicitors |
Orders
The Applications in an Appeal filed respectively on 1 July 2014 and 10 July 2014 be dismissed.
The appeal be dismissed.
The appellant mother pay the costs of the respondent father of and incidental to this appeal, such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carriel & Lendrum has been approved by the Chief Justice 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 65 of 2013
File Number: SYC 3851 of 2007
| Ms Carriel |
Appellant
And
| Mr Lendrum |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 30 May 2013 Ms Carriel (“the mother”) appeals an order made by Judge Scarlett of the Federal Circuit Court of Australia on
8 May 2013 dismissing an application to vary parenting orders in accordance with the principle in Rice & Asplund (1979) FLC 90-725.The appeal is opposed by Mr Lendrum (“the father”).
The child the subject of the parenting orders is child X (“the child”) born in 2005.
By Applications in an Appeal filed 1 July 2014 and 10 July 2014 respectively, the mother seeks to adduce further evidence on the appeal.
Brief background
There has been ongoing litigation between the parties in relation to parenting issues since 2007, and the final orders sought to be varied by the mother were made by Federal Magistrate Sexton (as her Honour then was) on 30 November 2010 (“the 2010 orders”) (see Lendrum & Carriel [2010] FMCAfam 1322).
In summary, those orders provided for the parties to have equal shared parental responsibility save for the father to make decisions as to the child’s schooling, and for the child to live with the father and spend time with the mother, supervised at least up to the end of 2012.
Those orders also required the mother to submit to urinalysis and hair follicle testing to determine the presence of illicit drugs and/or alcohol in her system. The orders also restrained the mother from consuming any illicit substance, or alcohol, within 24 hours of the child coming into her care, from smoking cigarettes in the presence of the child, or taking the child to any Narcotics Anonymous meetings. The mother was also restrained from allowing her partner Mr D from coming into contact with the child, and from removing the child from the Sydney metropolitan area overnight without the prior written consent of the father.
On 9 November 2012 the mother applied to vary those orders, and the father in response sought dismissal of that application on the basis of the principle in Rice & Asplund.
On 17 December 2012, by consent, the order requiring supervision was discharged.
At the time of the hearing before the trial judge, the father was 42 years old and the mother was 44 years old.
The parties married in 2002, separated in April 2006 and were divorced in August 2007.
The father has professional qualifications, and operates his own business as a consultant.
The mother, at the time of the hearing before his Honour was not working and relied on a private income to support herself.
The mother commenced a relationship with Mr D in May 2010. The father remarried in November 2008.
Summary of the reasons for judgment delivered on 8 May 2013
The trial judge commenced his reasons for judgment by outlining the applications before him and the documents tendered by the parties in support, and by summarising the 2010 orders.
The trial judge referred to an affidavit sworn by the mother on 9 November 2012 wherein she deposed to her history of drug and alcohol addiction, and claimed that she had not consumed any illicit drugs since June 2009 nor any alcohol since January 2009 (at [16]). The mother also deposed to difficulties in seeing the child on a supervised basis pursuant to the orders then in place
(at [18]).
The trial judge recorded that in the same affidavit the mother deposed that she had taken steps to recover from her addictions such as attending Narcotics Anonymous, attending on her general practitioner regularly, attending a clinic in Sydney, and attending on her psychiatrist approximately every six months (at [19]).
The trial judge recorded excerpts from the mother’s affidavit at [21], where she deposed to the greater involvement she had had in the child’s life and schooling. The trial judge also recorded the affidavit evidence of various parents from the child’s school (at [23]), of the child’s supervisor when the child was in the care of the mother (at [24]), of the child’s maternal aunt and grandparents (at [25]), and of the mother’s sponsor at Narcotics Anonymous
(at [26]).
The trial judge also set out excerpts from a report by the mother’s psychiatrist, Dr J (at [29]-[32]), as to the mother’s progress, and from an affidavit of a therapist at the clinic in Sydney, Ms G (at [33]-[34]), also detailing the mother’s progress.
Turning next to the submissions of the parties, his Honour recorded that the “thrust” of the father’s submissions was that “the Court should protect the child from being the subject of further disputation about parenting arrangements”
(at [36]). In this regard, his Honour recorded a finding by Federal Magistrate Sexton under s 60CC(3)(l) of the Family Law Act 1975 (Cth) (“the Act”), where her Honour said that “[the child] needs certainty and stability in her arrangements over the long term” (at [39]).
His Honour noted the father’s concern that given the mother’s history of relapses into addiction, there was no guarantee that the mother would not relapse again, exposing the child to more risk.
After setting out the principle emanating from Rice & Asplund, namely that
(at [41]):
… where an order has been made in relation to the issue of where [a] child should live, the Court should not lightly entertain an application to reverse that earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal.
His Honour noted senior counsel for the father’s submission that the evidence proffered by the mother did not meet “the test for a significant change of circumstances to warrant the matter being relitigated”, and that “further litigation would lead to uncertainty and destabilisation”. On the other hand, senior counsel for the mother submitted that the mother’s evidence, and the significant changes since the 2010 orders, lead to the conclusion that in the context of the best interests of the child the application should not be dismissed (at [44]-[45]).
The trial judge recorded the submissions on behalf of the mother that the 2010 orders “contemplate a reconsideration of the terms of the parenting orders following the end of the 2012 calendar year”, and that the father’s consent to a variation of the orders on 17 December 2012 including to “the ‘fundamental requirement’ of supervision” (original emphasis) supports this contention
(at [50]-[51]).
His Honour considered the balance of the mother’s submissions from [52] to [56] noting that there was evidence of changes in the child’s age and maturity, the mother’s prognosis and compliance with rehabilitation programs, and the mother’s general compliance with the orders up to the point of the hearing.
His Honour recorded that the “rule” in Rice & Asplund was the subject of detailed consideration in Miller & Harrington (2008) FLC 93-383, SPS & PLS (2008) FLC 93-363 and Collivas & Cassimatis [2007] FMCAfam 293.
His Honour accepted that the mother’s evidence should be taken at its highest (at [58]), and that the “threshold question” enunciated in Rice & Asplund is determined as a preliminary matter, and on the merits.
Thus, his Honour framed the question before the court as, “assuming the evidence of the mother is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?” (at [59]).
His Honour then turned to the submission by senior counsel for the mother that the 2010 orders contemplated a reconsideration following the 2012 calendar year. His Honour referred (at [60]-[64]) to Orders 11, 19 and 20 of Federal Magistrate Sexton’s reasons for judgment and he also referred to “[51] of [her] reasons for judgment”; this last reference should in fact have been to Order 51 of Federal Magistrate Sexton’s orders (although that order was in fact a notation); his Honour found that her Honour’s orders were always intended to be “final orders”. His Honour said that “[w]hether interim orders or final orders should be made, or whether there should be a review at some time in the relatively near future were considered by her Honour and rejected” (at [65]-[67]).
Addressing specifically orders 11, 20 and 21 where supervision and drug testing was to remain in place until “the end of the 2012 calendar year at the earliest”, his Honour found that this did not represent a specific end point for these orders (at [70]). His Honour found that the words “at the earliest” and “at least … should be seen as a guide to the parties about a time for consideration of the need to vary those specific provisions” (original emphasis omitted) (at [70]).
In this context, his Honour also referred to the notation at paragraph 50 of Federal Magistrate Sexton’s orders, which read, “[t]he parties are at liberty to vary these orders by written agreement between them”. His Honour found that this was merely a statement of fact and that it did not, of itself, form an order (at [70]-[71]).
Turning then to the key question, namely, whether “there [is] a sufficient change of circumstances shown by the mother’s evidence, taken at its highest, to justify embarking on a hearing?”, his Honour was of the view that this should be considered in the light of the statement by Warnick J in SPS & PLS at [81] where his Honour said (at [73]):
… Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(Emphasis added by the trial judge)
His Honour recorded that the mother’s evidence “shows a progression by the mother that is to her credit”, but his Honour expressed concern that her application is “more to do with her own perfectly understandable wish to spend more time with her child than with a consideration of the child’s best interests” (at [77]).
His Honour found that the mother’s application to re-open the parenting proceedings was “premature”, and that a significant concern, as expressed by the Federal Magistrate, was the risk to the child should the mother relapse
(at [78]). In this context his Honour had regard to the “cautious prognosis, conditional upon the mother continuing to undergo the necessary treatment” of Dr J and Ms G (at [78]-[80]).
Finally, in dismissing the application, his Honour found that the evidence taken at its highest at this stage was not sufficient to embark on a further parenting hearing (at [81]). His Honour found that:
a)the interests of the child in not being subject to further litigation are such that the application should not be allowed to continue; and
b)further litigation at this stage of the child’s life will not give the child the stability and certainty that the Federal Magistrate found that she needed, and this is supported by s 60CC(3)(l) of the Act.
Grounds of appeal and orders sought
The mother agitates the following grounds of appeal:
1.That His Honour erred in identifying the issue to be determined as whether there had been a sufficient change in circumstances shown to justify embarking on a hearing:
1.1.such approach erroneously identifying the question to be addressed by the Court;
1.2.such approach inappropriately narrowing the enquiry to be undertaken by the Court; and,
1.3.such approach precluding a proper consideration by the Court as to the best interests of the child, [X];
and erred in determining the application on such basis.
2.That His Honour erred in failing to have proper and sufficient regard to all of the matters arising for consideration pursuant to section 60CC in determining that which was in [the child’s] best interests.
3.That His Honour failed to have any or sufficient regard to all aspects of the appellant’s substantive application, including the application for variation of the injunctive orders, in determining to dismiss the application.
4.That His Honour erred in finding that:
4.1.the appellant’s substantive application had more to do with the appellant’s wish to have more time with [the child] than a consideration of [the child’s] best interests, and in considering such matter relevant to the present determination;
4.2.the appellant’s application was premature; and,
4.3.the proceedings would not give [the child] stability and certainty and that a finding of a need for the same in November 2010 ought preclude a continuation of the proceedings.
5.That His Honour erred in failing to have any or sufficient regard to the alteration effected to the parenting arrangements by the Orders of 17 December 2012.
6.That His Honour erred, notwithstanding ground 1, in finding that there had not been a sufficient change in circumstances as to warrant a reconsideration of that which was in [the child’s] best interests.
7.That, to the extent necessary to determine the same, that the principles in Rice v Asplund (1979) FLC 90-725 have no proper application to the determination of proceedings pursuant to Part VII of the Family Law Act 1975.
The mother seeks the following orders:
1.That the Appeal be allowed.
2.That the Order of the Federal Circuit Court of Australia, Sydney, on
8 May 2013 be set aside.3.That the proceedings be listed for further directions at the first available opportunity by a Judge of the Federal Circuit Court of Australia other than the (sic) Judge Scarlett.
4.That the respondent pay the appellant’s costs of and incidental to this Appeal.
5.In the alternative to paragraph 4 herein, that the appellant be granted a certificate pursuant to the Federal Proceedings (Costs) Act 1981 in respect of both this Appeal and any rehearing.
At the hearing of the appeal the mother’s senior counsel advised that Grounds 1 and 7 were not “pressed”. As to the balance of the grounds of appeal, in the written submissions in support of those grounds, Grounds 3 and 4 were addressed compendiously, as were Grounds 2 and 5. We are content to adopt that course in our discussion of these grounds.
Discussion
Grounds 3 and 4
There is no doubt that the application as originally filed by the mother not only sought a variation of the orders in respect of time with the child, but also sought to vary the injunctive orders and the drug and alcohol testing regime, but the fact is that the injunctive orders were varied by consent on
17 December 2012, when supervision was also lifted. Further, the clear focus of the application before his Honour for determination, and the argument at the hearing, was whether there was such a change of circumstances as to warrant a rehearing of the parenting issues, and primarily the time spent with the child. The variations to the drug and alcohol testing regime hinged on and around that issue.
His Honour was well aware of the orders that the mother was seeking, and more specifically his Honour well knew the evidence of Dr J, the mother’s psychiatrist, and plainly took that into account (for example see [13], [19(d)], [29], [30]-[32] and [79]). Thus we agree with the submission of the father’s senior counsel that to suggest, as the mother does in her summary of argument (at paragraph 19), that his Honour did not take these matters into account is erroneous.
We also observe that the outline of argument put before his Honour on behalf of the mother did not refer at all to the mother’s application to vary the testing regime. That lends support to that matter being part and parcel of the central issue before his Honour outlined above.
Thus, there is no merit in Ground 3.
Ground 4 challenges his Honour’s findings at [77], [78] and [81]. Those paragraphs read as follows:
77.The evidence shows a progression by the mother that is to her credit. The concern that I have, however, is that the mother’s application at this stage is more to do with her own perfectly understandable wish to spend more time with her child than with a consideration of the child’s best interests.
78.It appears to me that the mother’s application to reopen parenting proceedings is premature, even though it is clear that she is not seeking that [the child] should reside with her. One of the significant concerns expressed by Sexton FM in the 2010 proceedings was the risk to the child of a relapse by the mother. The affidavits of Dr [J] and [Ms G] each contain a cautious prognosis, conditional upon the mother continuing to undergo the necessary treatment.
…
81.In my view, the evidence, taken at its highest, is not sufficient to establish a justification for embarking on a further parenting hearing. The interests of the child in not being subject to further litigation are such that the Application should not be allowed to continue. Further parenting litigation at this stage in the child’s life will not give her the stability and certainty that Sexton FM considered that she clearly needed.
Although lack of reasons by his Honour in reaching these findings is not identified as a complaint in the ground of appeal, it became a primary complaint in the mother’s written summary of argument, as well as the claim that these findings were not “open” to his Honour.
In considering these complaints, it must be understood that these findings by
his Honour cannot be read in isolation. They are plainly interrelated, and as the father says in his summary of argument (page 3, paragraph 2), they have to be read “in the context of his Honour’s judgment including by necessity incorporating the history and findings made by [the Federal Magistrate] and the evidence adduced by the Mother since the Orders were made.”
Thus, for example, his Honour’s expression of concern about the motives of the mother must be seen in the light of his Honour’s findings that the application was premature, and that further litigation at that stage of the child’s life was not warranted.
Further, we are perplexed by the claim that the findings that the application was premature and that litigation at that stage was not warranted, were not “open” to his Honour. They encapsulate the issue that his Honour had to determine, and as his Honour phrased it (at [59]), “… assuming the evidence of the mother is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing? …”.
This formulation of the question to be addressed was ultimately not the subject of challenge in this appeal, but more to the point, in answering that question
his Honour plainly referred to, and took into account, the evidence that was before the court from the mother as to the changed circumstances. Thus, subject to one further issue, there was certainly evidence on which his Honour could make these findings, and it can only then be a matter of the weight
his Honour afforded that evidence that can be questioned. In that regard we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference; a court has to be satisfied that the trial judge was “plainly wrong, his decision being no proper exercise of his judicial discretion” (Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519). That cannot be said to be the case here.
As to the further issue, it is said by the mother that (at paragraph 23 of her written summary of argument)
no evidence was adduced in the present proceedings as to any instability or uncertainty on [the child’s] part either generally or as a result of the [mother’s] application, nor was any evidence adduced as to any adverse impact upon [the child] of the application nor the continuation of the proceedings … ,
and thus that finding was not open to his Honour. However, as highlighted by the father’s senior counsel (at page 4, paragraphs 5 and 6) reference, for example, to the Full Court decision in Prewett & Mann [2013] FamCAFC 130 provides the definitive response to this submission. It is instructive to set out the relevant paragraphs of the father’s summary of argument in this regard as follows:
5.As to the contention advanced in the Summary of Argument at [23]-[25] as to the absence of evidence of the effect of the litigation on [the child], little more need be said than to refer to the Full Court’s decision in Prewett & Mann [2013] FamCAFC 130 to demonstrate the transparency of such submission. Their Honours held at [9] as follows:
“The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363)”.
And at [66]:
“There was no expert evidence called in the father’s case which established how this child might be affected if the mother’s application to change the 5 March 2008 orders was permitted to proceed. We agree with the submission advanced by counsel for the father that expert evidence was not required and that the rule in Rice & Asplund is founded upon well settled principles that continuous litigation over a child is not generally in the child’s interest (Marsden v Winch). However, because of the absence of evidence that this child might be adversely affected in some particular manner, his Honour could do no more than undertake this component of the exercise by reference to the principle and, to the extent necessary, under Part VII of the Act.”
6.It would be a sad irony indeed that expert evidence was needed to demonstrate the obvious; to invoke Francis Bacon’s oft-stated quote, in so doing, “the remedy becomes worse than the disease”.
Accordingly, there is no merit in Ground 4.
Grounds 2 and 5
Ground 2 raises an interesting question, and one that we feel has not been directly answered by a court to date. That question is whether when applying the principle in Rice & Asplund, it is necessary to address in any detail, or even at all, the factors for determining what is in a child's best interests contained in s 60CC of the Act?
A prime example of what has been said to date in relation to this question is what Warnick J said in SPS & PLS (at [48(iii)]), namely:
At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.
This was echoed by the Full Court in Miller & Harrington where their Honours said this (at [72]):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
As can be seen these pronouncements do not provide a direct answer to the question posed above.
However, the Full Court in Poisat & Poisat (2014) FLC 93-597 did take the issue one step further in saying at [42], it is readily apparent that
…while the nature of the hearing undertaken at either stage will have the best interests of the relevant child/ren as its paramount consideration (s 60CA [of the Act]), the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case.
We consider that that statement fits neatly with what Warnick J also said in
SPS & PLSset out above at [30], and with what Nygh J, with whom Barblett and Fogarty JJ agreed, said in the Full Court decision of Newling & Newling; Mole (Applicant) (1987) FLC 91-856 at 76,467:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. …
This approach is also consistent with the recent pronouncement by the Full Court in SCVG & KLD (2014) FLC 93-582 to the effect that the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.
In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Thus, it is entirely understandable, and in our view, not erroneous, for
his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
This approach, when the principle in Rice & Asplund is in play, can also perhaps be seen as a product of the related question of whether an order dismissing an application on the basis of the principle in Rice & Asplund is a parenting order or not. If it is a parenting order then the Act requires a consideration of all of the factors that bear upon the best interests of the child. This has been touched on in several cases. For example in SPS & PLS
Warnick J said this:
77.An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
78.Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467 [quoted earlier in these reasons]…
(Emphasis in original)
This issue was taken up by the Full Court in Poisat where their Honours said this:
53.The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the relevant child’s best interests.
54.Her Honour did so. However, we have considerable doubts as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in
s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made.For our part, we agree with the comments of Warnick J in SPS & PLS and the Full Court in Poisat, and we seriously doubt whether an order dismissing an application such as the mother’s here is a parenting order. We are not able to come to a concluded view though because we have not heard any argument directed to this issue.
In any event, we note that in fact, in applying Rice & Asplund, his Honour addressed the matters that the mother suggests (at [27]) were necessary in determining what was in the child’s best interests. For example, his Honour had regard to the mother’s evidence as to the child’s views, as to the substantial improvement in the mother’s health, as to her compliance with testing, as to her relationship with the child, and as to her improving capacity as a parent.
His Honour said this:
75.I have considered the evidence adduced by the mother, noting that it now contains evidence from Dr [J] and Ms [G] about the mother’s treatment and evidence from various people, including her own family and parents of children at [the child’s] school, who have regular interaction with her. I note that there is now evidence of statements made by [the child] about her wish to see her mother more frequently.
76.There is certainly evidence that the mother has complied with the requirements of supervision and drug testing, including having taken some 158 drug tests. There is evidence that, since the consent orders were made on 17 November 2012 removing the need for supervision, the mother has had the opportunity for a greater and freer interaction with the child. It is also a fact that [the child] is more than two years older than she was when the matter was before the Court in September 2010.
77.The evidence shows a progression by the mother that is to her credit. The concern that I have, however, is that the mother’s application at this stage is more to do with her own perfectly understandable wish to spend more time with her child than with a consideration of the child’s best interests.
Significantly though, it is readily apparent that those matters were considered by his Honour in the context of determining whether or not a sufficient change of circumstance to warrant further litigation was demonstrated.
Thus, there is no merit in Ground 2.
As to Ground 5, as can be seen, his Honour referred specifically to this issue at [76] of his reasons, and thus we do not accept that his Honour failed to take it into account. The question can only be what weight his Honour gave to it, and in that regard, and given what we have said already about this issue above (at [46]), we are not persuaded that his Honour was “plainly wrong” and failed to properly exercise his discretion.
This ground also fails.
Ground 6
This is not a proper ground of appeal; it does nothing more than make an assertion without identifying the error that is alleged.
The written summary of argument does not help either. There, it is just sought to repeat the submissions made to the trial judge and claims that the changes relied on by the mother were sufficient, and his Honour failed to properly consider them. At best this smacks again of a weight challenge, and for our part it falls at the same hurdle that the other weight challenges have.
We are not persuaded that there is any merit in this ground of appeal.
Applications in an Appeal
By Application in an Appeal filed 1 July 2014 the mother seeks to adduce further evidence on the appeal. That application is supported by an affidavit sworn by the mother on 30 June 2014.
In effect, the further evidence addresses events occurring after the order of
8 May 2013, and in particular the mother’s:
a)continual abstinence from drugs and alcohol;
b)continued participation in treatment programs;
c)continued compliance with drug testing;
d)difficulties in maintaining employment in deference with ongoing testing; and
e)difficulties with the father’s attitude to the child and to the mother;
and the child’s wishes to spend more time with the mother.
As to this updating evidence of the mother, we fail to see how that can establish error by the trial judge on the basis of the principles set out in the High Court decision of CDJ v VAJ (1998) 197 CLR 172. There the High Court said this:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
His Honour was clear in recognising the progress made by the mother in all respects but, as referred to above, the issue was the risk of relapse, and it seems to us that the further evidence does not advance that issue at all, or sufficiently, such as to require admission of the further evidence.
There is also the question of the controversial nature of the evidence as to the alleged conversations between the parties and the wishes of the child. In a responding affidavit tendered to us, the father puts that evidence in issue. It is of course the case that before his Honour the hearing proceeded “on the papers”, and that in his determination his Honour quite properly took the evidence of the mother at its highest, but we cannot ignore the fact there is an issue here, and we are not able to necessarily accept the mother’s evidence at face value.
By a further Application in an Appeal filed 10 July 2014 the mother seeks to adduce additional evidence on the appeal comprising a report of Dr J dated
6 July 2014. The contents of that report goes to the mother’s mental state and concludes that, “[the mother] has developed stable, adaptive methods to cope with her intense emotions” and that she has “developed alternative emotional management pathways to that of substance use”.
It is submitted that this further evidence demonstrates that his Honour was in error in finding that the application was “premature”, and that a continuation of the proceedings would impact adversely on the stability and certainty in the child’s life; in other words, this evidence is said to be relevant to Ground 2.
We are not persuaded as to the relevance of the further report of the psychiatrist. The mother’s mental state was not in issue. The Federal Magistrate did not make the orders or impose the conditions that she did because of any question as to the mother’s mental state and thus, as one would expect, that was not the subject of any enquiry before the trial judge. The primary issue before his Honour was the likelihood of a relapse on the part of the mother and the risk that that posed to the child.
Accordingly, we propose to dismiss the applications.
Conclusion
Given that we have found no merit in any of the grounds of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing we received submissions from senior counsel for each of the parties as to the question of costs depending on the result of the appeal.
Senior counsel for the father sought an order for costs if the appeal was dismissed. That order was opposed by senior counsel for the mother.
In the circumstances of the appeal being wholly unsuccessful, we consider that it is appropriate to make an order for costs in favour of the father.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Kent JJ) delivered on 25 March 2015.
Associate:
Date: 25 March 2015
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