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…
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- Carriel & Lendrum [2015] FamCAFC 43
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CaseChat Overview and Summary
The primary legal issue was whether the trial judge correctly applied the Rice & Asplund principle in dismissing the mother's application to vary the parenting orders. Another issue was whether the trial judge erred in the weight he gave to the evidence presented. A further issue was whether the mother's application to introduce new evidence on appeal was permissible. Finally, the court needed to determine whether the father should be awarded costs of the appeal.
The court held that the trial judge did not fail to consider the full extent of the evidence and applications before him. The court also found that the trial judge did not err in the weight he afforded to the evidence. When applying the Rice & Asplund principle, the court concluded that it was unnecessary to address all the factors in s 60CC of the Family Law Act 1975 (Cth). The court seriously doubted that a dismissal of an application to vary parenting orders was a parenting order under s 64B of the Act, as it did not fit within the definition of such orders. Therefore, the court found no merit in any ground of appeal. The court also dismissed the mother's application to introduce new evidence on appeal, as the evidence was not relevant to the issues before the trial judge. The court further ruled that the father was entitled to costs of the appeal, as it was wholly unsuccessful.
The court dismissed the mother's applications to adduce further evidence and to vary the parenting orders. The appeal was also dismissed. The court ordered the appellant mother to pay the respondent father's costs of the appeal, with costs to be assessed in default of agreement.
Orders
Orders of the court
1.
The Applications in an Appeal filed respectively on 1 July 2014 and 10 July 2014 be dismissed.
2.
The appeal be dismissed.
3.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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 & PLSWarnick 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 orderIn 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 ins 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.