CULBERT and HOWLAND

[2019] FCWA 224

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CULBERT and HOWLAND [2019] FCWA 224

CORAM: TYSON J

HEARD: 16 OCTOBER 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 4355 of 2018

BETWEEN: MR CULBERT

Applicant

AND

MS HOWLAND

Respondent

Catchwords:

PARENTING – APPEAL - Application for leave to appeal against interim order of a Family Law Magistrate – Test to be applied – Where the applicant seeks leave to appeal the Magistrate’s decision to decline a stay of interim parenting orders – Leave declined – Case turns on its own facts

PRACTICE & PROCEDURE – APPEAL - Where applicant seeks to adduce further evidence on appeal – Where the is no express provision in legislation for permitting further evidence – Where the Court has the power to admit further evidence notwithstanding absence of express legislative provision

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mrs Farmer
Respondent	:	Mr Berry SC

Solicitors:

Applicant	:	Tolcon Legal
Respondent	:	Paterson & Dowding

Case(s) referred to in decision(s):

AIF v AMS (1999) 199 CLR 160

Aldridge & Keaton (Stay Appeal) (2009) FLC 93-421

Bennett & Bennett (1991) FLC 92-191

CDJ v VAJ (No 2) (1998) 197 CLR 172

House v King (1936) 55 CLR 499

Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101

Jess & Jess (2014) FLC 93-620

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

K & B (2006) FLC 93-288

Medlow & Medlow (2016) FLC 93-692

Pangkala & Todd [2019] FCWA 115

Rice & Asplund (1979) FLC 90-725

Searson & Searson (2017) FLC 93-788

U v U (2002) 211 CLR 238

University of Wollongong v Metwally (No 2) (1985) ALJR 481

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Culbert & Howland has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1 The applicant father [Mr Culbert] and the respondent mother [Ms Howland] have two children [Child A] born [in] 2013 and [Child B] born [in] 2016.

2 On 15 June 2018 orders were made by consent which provided for the parents to have equal shared parental responsibility and for the children to live in a shared care arrangement. At that time, both parents lived in [Suburb O].

3 In November 2018 the mother relocated to [Suburb N], without the father’s consent. The father subsequently commenced child-related proceedings.

4 The matter proceeded to an interim hearing before Magistrate Glass on 16 August 2019 regarding parenting arrangements. His Honour delivered reasons on 23 August 2019 and pronounced orders which included a suspension of a number of the 2018 consent orders, permission for children to attend [B Primary School], with Child A to commence from term 4 2019 and a variation of the time the children spend with the father.

5 On 24 September 2019 the father filed an application seeking a stay of the orders dated 23 August 2019. The mother opposed the stay, which was heard by the presiding Magistrate on 27 September 2019. On 8 October 2019 his Honour delivered reasons, dismissing the father’s application. On that date, an order was made that notwithstanding any previous order, neither child was to attend school on Monday 14 October 2019.

6 On 11 September 2019 the father filed a Notice of Appeal, seeking leave to appeal the orders of 23 August 2019. That was listed for directions on 14 October 2019. On 8 October 2019 the father filed a further Notice of Appeal, seeking leave to appeal the orders of 8 October 2019.

7 The father sought his second Notice of Appeal be listed for hearing on an urgent basis, in circumstances where Child A was due to commence at the new school, B Primary School, on 14 October 2019.

8 That Notice was listed in the ordinary course for directions on 25 November 2019. On 14 October 2019, counsel for both parties agreed it should be heard on an urgent basis and their availability to argue the matter that day. On that basis, I listed the matter for hearing that afternoon. I reserved my decision until Wednesday 16 October 2019 and made an order, not by consent but not opposed, that the orders for the children not to attend school be extended to that day.

9 These are my reasons. I am delivering them orally given time constraints, but will order a transcript to be provided to the parties free of charge. I reserve my rights to correct any infelicity of expression.

WHAT IS THE APPLICATION AND EVIDENCE RELIED UPON?

10 The father relies upon his Notice of Appeal filed 8 October 2019, his submissions in support filed 11 October 2019 and the documents set out in his draft appeal index filed 8 October 2019. He seeks leave to appeal the orders of 10 October 2019 dismissing his stay application and for those orders to be set aside.

11 The mother’s counsel handed up a list of authorities. Both parties also referred to the transcript of proceedings before Magistrate Glass on 16 August 2019. I have read and carefully considered all of the material.

WHAT ARE THE ISSUES FOR DETERMINATION?

12 Counsel agree there are two discrete issues for urgent determination being whether the father should be granted leave firstly, to appeal and secondly, to adduce further evidence.

13 The mother opposes the father being granted leave to appeal and leave to rely on his further affidavit.

14 The father’s counsel confirmed the father’s affidavit was not directed towards his application for leave. Instead, it was submitted that the affidavit simply afforded the father an opportunity to respond to the mother’s affidavit, which was accepted for filing at the hearing of his application for a stay.

WHAT IS THE BRIEF BACKGROUND?

15 The mother is a [social worker] and was born [in] 1981. She is 38 years of age. The father is engaged in [sales] and was born [in] 1980. He is 39 years of age. The mother has repartnered with [Mr Y]. The father has not repartnered.

16 The parties commenced cohabitation in August 2011 and separated on 10 February 2018. They have resolved financial matters in a Binding Financial Agreement in July 2018. I have already referred to the Consent Orders of June 2018 in relation to parenting.

17 On 17 December 2018 the father commenced proceedings on an urgent basis, seeking injunctions restraining the mother from changing Child A’s enrolment at [Suburb O School].

18 On 2 January 2019 the mother filed her responding documents.

19 On 9 January 2019 interim orders were made restraining the mother from changing Child A’s enrolment from Suburb O School and from enrolling Child B in any school without the consent of the father or an order of the Court. The parties were ordered to attend a Case Assessment Conference which took place on 14 February 2019 and the proceedings were programmed to an interim hearing.

20 On 25 March 2019 the mother filed a minute of interim parenting orders and affidavit in support. On the same date, the father filed an Application in a Case and affidavits in support, together with a minute. In the father’s minute, he sought firstly that the mother’s Form 1A Response be dismissed and otherwise, set out orders in the alternative.

21 On 8 April 2019 orders were made by consent for the appointment of Dr [W] as the Single Expert Witness. Dr W’s report was received on 4 June 2019. Orders were made extending the time in which the parties were to file amended minutes and affidavits in support for the interim hearing which was adjourned to 16 August 2019 before the presiding Magistrate.

22 Both parties were represented at the interim hearing. Judgment was reserved and written reasons delivered on 23 August 2019. At that hearing, the transcript reveals a discussion occurred about the father’s application to dismiss the mother’s application at trial pursuant to the rule in Rice & Asplund ,[1] to which I will refer later. It is suffice to note at the hearing, the father did not seek to have the mother’s application dismissed on an interim basis and conceded, through his counsel, that was a matter for trial, as recorded in the published reasons.

[1] (1979) FLC 90-725.

23 The father sought interim orders for Child B to be enrolled at Suburb O School. The mother sought interim orders for the children to live with her for the majority of the week, and spend time with the father for the majority of weekend and holiday times, as particularised in her minute. She sought on an interim basis that the children attend B Primary School.

24 At the time of the interim hearing, the parties and the Court had the benefit of the report of Dr W. His Honour stated he placed “not inconsiderable weight” on the evidence of the Single Expert Witness, recording that in doing so, he was mindful of the fact that evidence was untested.

25 His Honour determined the orders of June 2018 insofar as the arrangements for the children to spend time with the father should be suspended. Interim orders were made for the children to spend time with the father on a four weekly cycle, from Friday afternoon until the commencement of school on Monday in weeks 1 and 3; from Thursday afternoon until the commencement of school on Monday in week 2; and from Thursday afternoon until Saturday morning in week 4. In addition the children were to spend half of the school holidays and spend time with the father on special occasions.

26 Interim orders were made discharging the earlier injunction and granting the mother liberty to enrol the children to attend B Primary School, with Child A to commence in term 4 2019. The proceedings were otherwise programmed to a readiness hearing.

27 On 24 September 2019 the father filed an application seeking a stay of the orders of 23 August 2019, supported by an affidavit. The matter came before the Court on 27 September 2019, at which time the mother’s Form 2A and affidavit sworn 26 September 2019 were also in evidence.

THE MAGISTRATE’S REASONS FOR DECISION

28 The learned Magistrate delivered brief written reasons on 8 October 2019, shortly after hearing the stay application.

29 His Honour recorded the interim orders made on 23 August 2019 provided for the children to live with the mother and spend substantial and significant time with the father. He observed the father had lodged an appeal against those orders and the pending application then before the Court for determination, by the father for a stay, which the mother opposed.

30 His Honour referred to the Full Court’s decision of Aldridge & Keaton (Stay Appeal) (2009) FLC 93-421 in terms of the relevant law to be applied. In addition he quoted the Full Court’s decision in K & B (2006) FLC 93-288 that in cases involving children:

from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.[2]

[2] (2006) FLC 93-288 at [32].

31 His Honour then turned to consider a number of specific matters with reference to the following headings:

•Preliminary assessment of the strengths of the appeal

•Will the appeal be rendered nugatory if a stay is not granted?

•The desirability of limiting the frequency of any change in a child’s living arrangements

•The balance of convenience

•Best interests

•Other considerations

32 His Honour found he was unable to conclude that the father’s appeal was unarguable, and that he did not consider the appeal would be rendered nugatory if the stay were not granted. He considered the desirability of limiting the frequency of changes to the children’s arrangements, both in terms of schooling and spend time arrangements. His Honour addressed the practical consequences of the granting or refusing of a stay, rejecting the father’s submission there was no hardship. He observed a consequence of granting the stay would require the mother to continue to drive three and half hours on days the children were in her care to school, which was a significant imposition on both her and the children. He found the hardship imposed on the mother should the stay be granted to be significant.

33 His Honour stated the children’s best interests were a significant consideration, addressing each party’s submissions about the respective benefits to the children if the stay were granted or refused. He acknowledged the mother’s mental health difficulties including the current treatment she was receiving and her evidence that she was “drained” and did not know who she would cope if the June 2018 parenting arrangements continued. His Honour found the quality of the mother’s caring for the children may be adversely impacted by the stay. His Honour considered the father to be bona fide and the mother was entitled to the benefit of his decision and to presume it was correct, but found these considerations were less significant than others.

34 He observed the directions hearing allocated on 14 October 2019, the lack of any enquiries by the parties about the likely time in which the appeal would be heard, noting on his own enquiries it was unlikely to be heard before February 2020.

35 His Honour concluded at paragraph 31:

Were I to grant the stay, it would leave in place arrangements that I have determined to be impractical and causing significant hardship to [Ms Howland] for a relatively significant period. I do not consider it to be in the children’s best interest to do so, noting their welfare must always be in my mind. (footnote omitted)

36 There was no complaint about his Honour’s summary of the relevant legal principles concerning the granting of a stay in child-related proceedings.

37 I accept his Honour’s summary of the relevant principles were correctly stated. Further, for the reasons that follow, I also accept those principles were applied by the learned Magistrate in determination of the application for a stay.

38 It is well established that the granting of a stay is a matter of discretion. The authorities make it plain that a stay will not be granted lightly, nor as a matter of course. The difficulties associated with challenging an exercise of discretion were acknowledged, appropriately, by the father’s counsel.

39 In House v King (1936) 55 CLR 499 at 5050 it was stated:

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 such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial role has in fact occurred.

40 Error can be established if it can be demonstrated that the court below has acted “on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong.”[3]

LEAVE TO APPEAL

[3] CDJ v VAJ (No 2) (1998) 197 CLR 172 at [186].

41 As the parties were not married, the proceedings are to be determined under the Family Court Act 1997 (WA). The orders of 8 October 2019 are interlocutory, having been made by a Family Law Magistrate in the exercise of non-federal jurisdiction. Accordingly, leave is required.[4]

[4] Family Court Act 1997 (WA), s 221(1).

42 O’Brien J recently discussed the relevant legal principles regarding an application for leave in Pangkala & Todd [2019] FCWA 115 at [18] – [23]:

18If leave is granted, the appeal must proceed by way of a rehearing, but the court “may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the Magistrates Court”,[5] and “may make such decrees as it thinks fit, including a decree affirming, reversing or varying the decree the subject of the appeal”.[6]

[5] Ibid, s 211(2)(a).

[6] Ibid, s 211(2)(b).

19.For leave to appeal to be granted, the Court must be satisfied that the decision in question is wrong, or at least attended with sufficient doubt to warrant the grant of leave, and that a substantial injustice will result from a refusal of leave to appeal. That test is to be applied in the general run of cases, but in the context of the unfettered discretion to grant leave to appeal. It may give way to the particular interests of justice in appropriate cases.[7]

20.The first limb of the test is directed to the outcome at first instance, rather than to the path by which that outcome was reached, keeping a firm focus on the real issue – whether there is a realistic prospect of the decision being reversed if the appeal is permitted to proceed.[8] The consideration of the first limb of the test informs the consideration of the second.

21.The legislative requirement that leave be granted before a party may appeal against an interlocutory order reflects the policy consideration that court resources “should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties”.[9]

22.The requirement for leave in the present case, imposed as it is by statute, must be real and not merely illusory. While it is anomalous that unmarried parents in Western Australia require leave to appeal against a parenting order made by a Family Law Magistrate while married parents do not, that anomaly cannot in my view inform the consideration of whether or not leave should be granted in a particular case.

23.Similarly, the further anomaly that nowhere else in the country do parents, whether married or not, require leave to appeal against an interim parenting order cannot inform that consideration. Self‑evidently, the application must be determined in accordance with the requirements of the legislation as it presently stands.

43I respectfully agree and endorse his Honour’s summary.

LEAVE TO APPEAL

[7] Medlow & Medlow (2016) FLC 93-692; Jess & Jess (2014) FLC 93-620; Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101.

[8] Jess & Jess (2014) FLC 93-620, [63].

[9] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564, [42].

44 The father’s Notice of Appeal filed 8 October 2019, is reproduced in full:

Ground 1

The learned Magistrate erred in law in holding at [11] – [12] that the appeal would not be rendered nugatory as “any orders made in the event of a successful appeal are capable of reversal” when he should have found that absent a stay the appeal would have been rendered nugatory as it seeks to avoid the need for the child [Child A] to change schools at all.

Ground 2

In refusing the stay application, the learned Magistrate’s discretion miscarried.

Particulars

A.the learned Magistrate failed to give sufficient weight to the desirability of limiting the frequency of any changes to the children, both insofar as a change of school and change of living arrangements is concerned, if the event that the appeal succeeded;

B.the learned Magistrate failed to give sufficient weight to the proposition that if the appeal succeeded the child [Child A] will have been unnecessarily forced to change schools pending trial;

C.failed to give adequate consideration to the desirability that the frequency of any changes be limited as much as is possible and that the appeal was not merely a delaying tact [sic]

D.the desirability of changing the child [Child A]’s school with the consequent need to potentially change schools again if the father succeeded;

Ground 3

The learned Magistrate erred in law in concluding at [9] that the authorities did not require him to assess the merits of the appeal beyond satisfying himself that the appeal is not unarguable when that conclusion is against the weight of established authority which requires some preliminary assessment of the strength of the proposed appeal.

Ground 4

The learned Magistrate erred in law in limiting his consideration to the hardship that would be occasion to the mother, without considering the hardship that would be caused to the father, including the Father’s ‘Rice v Asplund’ case is significantly blunted as the orders will have already been varied by the time the matter gets to trial, without any real consideration by the Court of the relevant rule in Rice v Asplund.

45 In the father’s written submissions, he confirmed the reasons why the learned Magistrate’s decision was attended with sufficient doubt to warrant a grant of leave and that a substantial injustice would result from a refusal of leave, was “bound up in the merits of whether his Honour erred in principle and as a result of that error, the appropriate outcome is to grant a stay”.

46 The father’s case, in summary, was that the learned Magistrate made three errors of principle:

Firstly, in finding that the appeal would not be rendered nugatory because the orders were capable of being reversed.

Secondly, in concluding that the authorities did not require him to assess the merits of the appeal beyond satisfying himself that the appeal was not unarguable.

Thirdly, in wrongly elevating the convenience to the mother above the welfare of the children in determining the stay application.

47 The father also says the learned Magistrate’s decision was plainly wrong.

48 The mother’s case, in summary, is that the decision of the learned Magistrate was, on the evidence available to him, neither plainly wrong nor attended with sufficient doubt to warrant the grant of leave.

49 On the basis the father’s counsel argued that leave should be granted on the strength of the merits of the appeal, it is convenient to now consider the merits of those grounds.

Ground One

50 The father argues the learned Magistrate conflated the concepts of ‘nugatory’ with ‘irreversible’, submitting that an irreversible order, without a stay, would almost certainly render an appeal nugatory, however a reversible order can still involve an appeal being rendered nugatory.

51 The father says the appeal can be characterised as nugatory in circumstances where there is a real risk that the prejudice or damage he will suffer, will not be redressed by a successful appeal. If successful on appeal, Child A will have unnecessarily changed schools on an interim basis and then need to change again, to her original school. The father says his appeal seeks to avoid the need for Child A to change schools at all and to limiting the change she will be exposed to. He argues on any re-exercise of discretion if his appeal were to succeed, the mother will likely argue that Child A should not be subjected to further change. The father says “That, in and of itself, demonstrates that the absence of a stay will render the appeal nugatory”.

52 In his Honour’s reasons, at paragraphs 10 to 12, he considered this issue. He acknowledged the effect of the interim orders would change the configuration of the children’s time with each parent and for the change of Child A’s school this year, with Child B to follow next year.

53 His Honour recorded the mother’s submission that the appeal would not be rendered nugatory if the stay was not granted because it was neither impractical nor impossible for the changes to be reversed, in the event the appeal was successful. He referred to three decisions in paragraph 11, footnote 7, where courts declined to grant a stay, permitting the international relocation of children pending appeals against those orders.

54 His Honour concluded in paragraph 12:

Any orders made in the event of a successful appeal are capable of reversal. There is no question of the children being removed from the jurisdiction. The appeal would not be rendered nugatory if the stay were not granted.

55 It cannot be rationally be said that the father’s appeal would be rendered nugatory by dismissal of his stay application. If the father succeeds on appeal, orders can be made to enrol Child A to attend Suburb O School and likewise for Child B and to reinstate the previous parenting arrangements for both children.

56 With respect, the father’s submission on this ground was misguided. His application for the children to remain at Suburb O was unsuccessful at first instance. The appeal in relation to that matter is yet to be determined. That is a separate issue to the question as to whether the refusal to grant the stay would render the appeal nugatory, which in my view, it does not.

57 I conclude ground one of the proposed appeal is without merit and does not support any contention that the primary decision is wrong or attended with sufficient doubt to justify the grant of leave to appeal.

Ground Two

58 The father asserts that in refusing the stay application the learned Magistrate:

(a)Failed to give sufficient weight to the desirability of limiting the frequency of any changes for the children, both in respect of their schooling and living arrangements, and further to the proposition if his appeal succeeded that [Child A] would be unnecessarily required to change schools again.

(b)Failed to give adequate consideration to the desirability of limiting the frequency of any changes for the children;

(c)Failed to consider the impact on [Child A] if the father succeeded on appeal, resulting in her changing schools again.

59 At paragraphs 14 to 17 under the heading “the desirability of limiting the frequency of any change in a child’s living arrangements” the learned Magistrate recorded the father’s submission that granting the stay would meet this object. Further, he noted the father’s submission that the children were familiar with the existing arrangements, which Dr W had found the children were “coping fairly well” with.

60 His Honour recorded the mother’s submission that the orders of 26 August 2019 resulted in a reduction of 32 days per annum in the children being in the father’s care, and that the change was not radical, even if implemented and then reversed, on a successful appeal.

61 His Honour proceeded to consider the change of schooling and stated:

16The children currently live between the parents’ households a considerable distance from each other. It is not proposed that those residences be changed in the near term. I am unable to conclude on the evidence before me that the change in configuration contemplated by my Orders and any subsequent reversal would have a significant impact on the children.

17The more significant change contemplated by the Orders is the commencement of the children’s schooling at a new school. This Dr [M] opined that [Child A] will quite likely adjust to a change in the schools and develop new friends. I accept Ms [Howland]’s submission that [Child A] is likely to adapt to any change and also any subsequent return to her old school in the event the appeal is successful.

(citations omitted)

62 His Honour further considered these matters under the heading “Best Interests”. He accepted that to impose new schools on the children, only for those schools to be changed again, was unlikely to be in their best interests, but observed that issue could not be considered in isolation. He referred to the father’s evidence that Child A would be able to complete her current schooling with her friends and both children could continue with their existing extra-curricular activities. His Honour noted the mother’s submission that Child A would continue with gymnastics on the weekend and that otherwise, the children could continue to socialise with their friends when in the father’s care.

63 The learned Magistrate properly and appropriately took into consideration the desirability of limiting changes for the children. He acknowledged the change of schooling was significant. He carefully considered the father’s submissions about the desirability of limiting changes in the children’s arrangements, but found the evidence did not support a finding that the changes contemplated would have a significant impact on the children.

64 The learned Magistrate, in reaching that conclusion, referred to the report of the Single Expert Witness. While the father says it was inappropriate to do so and says only select aspects of the report were relied upon, both parties relied on the Expert’s evidence and indeed invited the Magistrate to do so.

65 With respect to the father, I do not consider the learned Magistrate fell into error as described. I do not consider there is substance to this complaint. I observe that reasons do not need to be lengthy to be adequate, provided the reasoning which lead to the decision is able to be ascertained.[10] In my view, the reasoning process by the learned Magistrate, noting the exercise of discretion, is readily able to be ascertained.

Ground Three

[10] Bennett & Bennett (1991) FLC 92-191.

66 The father asserts that the learned Magistrate erred in law in failing to undertake some preliminary assessment of the strengths of the proposed appeal and specifically whether he had an arguable case, as identified in Aldridge & Keaton (supra).

67 At paragraphs 6 – 9 of his Honour’s reasons, he recorded the father relied on 16 grounds of appeal, observing to the extent the grounds were directed to matters of weight, the father faced well-known hurdles. His Honour stated there was a strong presumption in favour of the correctness of a discretionary judgment and the appeal court must be satisfied that the learned Magistrate had acted upon a wrong principle or that his discretion was not properly exercised.

68 His Honour observed the father challenged the adequacy of his reasons, but noted the father had not chosen to make submissions at the interim hearing with respect to a number of the issues relevant to those grounds. His Honour stated the adequacy of reasons is influenced by the issues defined by the parties as requiring determination, particularly in the significantly curtailed enquiry into parenting orders.[11] He recorded the father’s allegation the learned Magistrate had made errors of principle, but his Honour noted he did not have the benefit of either detailed submissions nor any relevant authority supporting the asserted errors.

[11] Paragraph 7 of the learned Magistrate’s reasons for decision delivered 8 October 2019 (citations omitted).

69 His Honour concluded at paragraph 9:

In those circumstances, I am not prepared to conclude that Mr [Culbert]’s appeal is unarguable. I do not consider the authorities require me to go any further in my assessment of the merits of the appeal.

70 The father says the learned Magistrate erred in principle, by failing to apply the proper test and give some preliminary assessment to the strength of the proposed appeal. The father’s counsel says the language adopted by the learned Magistrate, being a double negative, misapplied the correct legal test and obfuscated the weight this consideration may have otherwise had on his Honour’s consideration of the application for a stay.

71 In many cases, for a Judicial Officer in the position of the learned Magistrate, it is difficult to determine in the context of application for a stay, whether the appeal will ultimately be successful. His Honour, albeit briefly, identified the father’s grounds of appeal and was not satisfied they were either unarguable or, by extension, devoid of merit.

72 It is well established that on appeal, courts should “avoid an overly critical, or pernickety, analysis of the primary judge’s reasons”.[12] In my view, the father’s ground falls into precisely what the High Court has cautioned against.

[12] AIF vAMS (1999) 199 CLR 160 at [150]; and U v U (2002) 211 CLR 238 at [117].

73 I do not accept his Honour’s statement involved a misdirection as to the appropriate enquiry. His Honour properly identified the need for some preliminary assessment of the strengths of the father’s proposed appeal and found that his appeal was arguable.

74 I do not consider there is substance to this ground. It does not support the father’s contention that the primary decision was wrong or attended with sufficient doubt to justify the grant of leave to appeal.

Ground Four

75 The father’s position before the learned Magistrate, was that Child A should not change schools on an interim basis. Further, he submits he raised “fairly and squarely” Rice & Asplund each time the matter was before the Court.

76 The mother says the father’s reliance on Rice & Asplund is inconsistent with the manner in which his case was argued at first instance. She says the father is bound by the conduct of his case.[13]

[13] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481.

77 At the hearing on 16 August 2019 the father’s counsel commenced the hearing addressing this precise point:

ROBERTSON, MR: Well your Honour, the matter is in reality I suppose, an application that my learned friend makes to vary prior final consent orders that were made as between the parties. True it is that we have raised the issue of Rice v Asplund (1979), however your Honour, I think having had regard to authority such as Searson & Searson [2017] Fam CAFC1019 [sic], I think the issue of Rice v Asplund (1979) is probably not one that your Honour can determine as a preliminary issue and is a matter that also will need to be determined at trial as to whether the changed circumstances justify a reopening of the decision. That being the case, the application is in reality – my learned friend’s application for interim orders – I suppose pending trial.

HIS HONOUR: Well, your client seeks interim orders too.

ROBERTSON, MR: He does, in the event that the – that your Honour is, I suppose, satisfied that the rule in Rice v Asplund (1979) seeks to vary the orders.

HIS HONOUR: Well, I’m bound by the parties conduct of the case. Do you say I should dismiss the proceedings because of the rule in Rice v Asplund (1979)?

ROBERTSON, MR: We say that ultimately, your Honour – and our position as at trial will be that the proceedings ought be dismissed. Well, ought be dismissed in accordance with the rule in Rice v Asplund (1979) to the extent that, if the mother was to change her circumstances so as to make the orders practicable – as on her own case, the orders are not practicable – that we have no difficulty with the orders remaining in place. However, if the respondent was not to relocate, then our position is certainly that the orders should change and that the primary care of these children should be with the father.

HIS HONOUR: But neither of those things are being agitated today.

ROBERTSON, MR: The primary care ‑ ‑ ‑

HIS HONOUR: The dismissal on the basis of Rice v Asplund (1979) or the change in primary care.

ROBERTSON, MR: No, your Honour, I’m not in a position to persuade your Honour that there should be a change in primary care or a change in the status quo pending trial. True it is that the issue of travel is a significant imposition on the children in the meantime. It would be a fairly drastic change for either parent to become the primary carer. So in those circumstances, we’re somewhat limited in the way that we can deal with it. And the – in any event, your Honour, that would be our position as at trial. …..

HIS HONOUR: Mr Robertson, whatever the position, I will hear from you substantively first. Thank you.

ROBERTSON, MR: Yes. Well, your Honour, the position insofar as our Minute of Order sought filed on 16 August is – paragraph 1 is that the application be dismissed. Well, I’ve indicated to your Honour that having reviewed the authorities and taking into account the principle that in determining a Rice v Asplund (1979) issue as a preliminary issue, your Honour has to take the mother’s evidence at its highest – to determine it as a preliminary issue.

78 Later during the hearing, the learned Magistrate told the father’s counsel he was struggling to understand the father’s position and sought clarification whether the father was seeking to be the children’s primary parent on an interim basis. At that point, the father’s counsel (who appears to be wrongly referred to as the learned Magistrate on the transcript, the first page 5 of the transcript dated 16 August 2019) confirms that the father’s primary position that the determination of Rice & Asplund was a matter for trial.

79 The mother’s counsel referred the Court to Searson & Searson (2017) FLC 93-788 in which the Full Court considered the circumstances in which the “rule in Rice & Asplund” could be applied, at either the outset of a hearing or at a trial. The Full Court confirmed that when being determined as a preliminary matter, it is to be determined on the merits, taking the applicant’s case at its highest.

80 A review of the transcript makes it plain that the father did not seek to agitate for it to be determined as a preliminary matter, but conceded it ought to be dealt with at trial. Accordingly, I do not accept the father’s complaint that the learned Magistrate failed to adequately and properly consider this issue.

81 The father is critical of the learned Magistrate’s conclusion that the change in arrangements for the children as contemplated by the orders and any subsequent reversal would not have a significant impact upon them. He submits that finding was not open to his Honour and was against the weight of the evidence. Child B commences school in 2020 and assuming his appeal succeeds, Child B would have to change school next year pending trial. He asserts there was no consideration of the potential change upon Child B in the event the appeal succeeded.

82 The father says the evidence of the parties and the Single Expert Witness were not tested and it was implicit in Dr W’s report that Child A would require time to adapt to changes. Dr W was not asked to consider how Child A would manage multiple changes over a short duration and it was therefore not open to his Honour to rely on Dr W’s evidence in respect of multiple changes in the event that no stay was granted and the appeal succeeded.

83 The father says his Honour ignored entirely other observations of Dr W that notwithstanding Child A would adapt, whether it was necessary for her to change schools. Finally he says that any change in the children’s schooling, potentially twice in a period of six months, would be disruptive to the children, irrespective of their capacity to adapt.

84 I do not consider the learned Magistrate fell into the error as alleged. His Honour was acutely aware the evidence was untested and it was open to him to attach weight to the evidence of the Single Expert Witness, as acknowledged.

85 The father accepts the Expert reported Child A was likely to adjust if there was a change in schooling while questioning whether it was necessary for her to change schools and contemplated such change may take place in 12 to 18 months’ time. The father says in those circumstances it was not open to the learned Magistrate to rely on the report of the Expert to conclude that Child A would cope, when he had not been specifically asked to consider the potential impact of multiple changes on Child A and Child B.

86 It is true that his Honour’s reasons were brief, however I note the stay application was listed urgently and promptly for hearing. Further I observe that his Honour delivered written reasons, again promptly, while on circuit.

87 While it may have been preferable for his Honour to have descended into greater detail and more clearly articulated his consideration of these matters, his reasoning is readily ascertained. His Honour found himself unable to conclude on the evidence that the change in interim parenting arrangements nor any reversal would have a significant impact upon the children. In my view that finding was clearly open to his Honour given the evidence of Dr W, accepting that evidence was untested.

88 I do not agree with the father’s submission that it was either inappropriate or wrong to rely on the Expert’s report in the manner the learned Magistrate did. It was, in my view, both open and available to the learned Magistrate to reach the conclusion that Child A was likely to adjust. Indeed it is difficult to see how he could have found otherwise.

89 Further, his Honour clearly considered the best interests of both children in reaching his decision. He referred to Child B being required to travel, his lack of toilet training which the mother argued was associated with the time spent in the car, as well as accepting the mother’s submission that any reversal to parenting arrangements would be managed by the children.

90 On the evidence available those conclusions are not, in my view, attended with sufficient doubt to warrant the grant of leave. In light of the reasons, there is little prospect the father could maintain that these matters were not considered by the learned Magistrate. Insofar as he argues about the weight to be afforded to the evidence on an interim basis when it is untested, I am not persuaded the father is likely to succeed in maintaining that there was any error of principle.

91 The father also complains that the learned Magistrate placed significant weight on the hardship to the mother relating to travel and his conclusion that the quality of the mother’s care giving to the children may be adversely impacted by the ongoing travel entailed. The father says the Court failed to properly consider ways in which that hardship could be addressed, minimised or removed. Further he argues that his Honour’s findings were against the weight of evidence in circumstances where the mother deposed in her affidavit “… I believe that I will have some difficulty in coping with the ongoing travel requirements … it will of course be possible to restore the previous arrangements for the children.”

92 The difficulty with this ground, is that at first instance the father’s case was that there was “no hardship per se”, as recorded by the learned Magistrate in paragraph 20. Again, the husband is bound by the manner in which he argued his case at first instance. There was no submission that this statement was an error of fact.

93 At paragraphs 19 – 20 his Honour acknowledged each parent referred to the hardship they may suffer if the stay was granted or refused. His Honour recorded the relevant consideration was that a “stay may be granted on terms that are fair to all parties” which may involve the Court weighing the balance of convenience and the competing rights of the parties, which required him to consider the practical consequences of the granting or refusing the stay.

94 The learned Magistrate rejected the husband’s submission there was no hardship, noting the consequence of granting the stay would be that the mother was required to continue to drive 3 ½ hours on days the children were in her care to deliver Child A to and from school. His Honour considered that travel was a significant imposition upon the mother as well as Child B. He noted the comments of Dr W that the father living in Suburb O and the mother living in Suburb N, was a distance “outside of what makes shared care a workable process”. His Honour accepted the travel imposition upon the mother was of her own making, in the sense she unilaterally moved.

95 His Honour concluded the mother would suffer significant hardship in the event the stay was granted.

96 The final aspect of the father’s submission is that the learned Magistrate’s assessment of hardship, elevated the mother’s convenience above the best interests of the children, specifically Child A.

97 I have already referred to his Honour’s reasons at paragraphs 14 to 17 in terms of the desirability of limiting the frequency of any change to the children’s arrangements. His Honour recorded at paragraph 25 that the children’s best interests were a significant consideration, accepting that to impose a change in schooling, if those schools were to be changed again, would not be in their best interests. He recorded that issue could not considered in isolation and considered the mother’s mental health difficulties, her treatment and found that the ongoing requirement of her to travel 3 ½ hours on days the children were in her care, might adversely impact upon her capacity to care for the children. I do not accept the submission that finding elevated the mother’s convenience over the best interests of the children. To the contrary, his Honour specifically considered the impact on the mother insofar as her capacity to parent the children was concerned. His Honour further recorded the mother’s view that Child B remains not toilet trained due to the amount of time spent travelling, again being a relevant consideration in terms of the children’s best interests.

98 His Honour concluded that if he were to grant the stay, it would leave in place arrangements he had determined were not in the children’s best interests.

99 I do not consider there is merit to this ground. Ground four does not support any contention the primary decision was wrong or attended with sufficient doubt to justify the grant of leave to appeal.

CONCLUSIONS

100 For the reasons set out, I am not satisfied the decision of the learned Magistrate to refuse the father’s application for a stay, on the evidence before his Honour, was either plainly wrong or attended with sufficient doubt to warrant the grant of leave, or that the father would suffer significant prejudice. I am not satisfied the father has established the decision was plainly wrong.

101 In reaching my decision to decline the father leave to appeal against the interim order, refusing a stay, I am mindful that the requirement for such leave reflects the policy consideration that the Court’s limited resources should not be lightly occupied with appeals concerning cases which do not finally determine the rights of parties. This is such a matter.

102 The father has not discharged the onus of satisfying me that not only is there sufficient doubt to warrant the reconsideration of the learned Magistrate’s refusal to grant the stay, but further that there would be a substantial injustice to him if leave were not granted.

103 For the reasons set out above, I am not satisfied there is merit in the father’s complaints. The father has not identified any discernible error in his Honour’s reasons, which were open to him in the exercise of his discretion to decline a stay. Specifically, I am not satisfied, as argued by the father, that:

(a)The learned Magistrate was wrong in finding that the appeal would not be rendered nugatory because the orders were clearly capable of being reversed.

(b)The learned Magistrate erred in his preliminary assessment of the father’s prospects of success on appeal, as required in accordance with the authorities.

(c)The learned Magistrate’s discretion miscarried, including the submission that he took into account extraneous matters or wrongly elevated the inconvenience of the mother above the best interests of the children.

104 Accordingly, the application for leave to appeal filed by the father on 8 October 2019 will be dismissed.

INTRODUCTION OF FURTHER EVIDENCE ON APPEAL

105 The father seeks leave to rely on a further affidavit sworn 8 October 2019, which is opposed by the mother.

106 The father’s counsel acknowledged the affidavit was only relevant if the father was granted leave to appeal, as he would seek to rely on the affidavit in the re-exercise of discretion.

107 In circumstances where I have declined the father leave to appeal, I intend to dismiss the application for leave to rely on the affidavit.

108 I will otherwise hear from the parties in relation to both any costs arising and further directions as may be sought in relation to listing the father’s appeal of the orders of 26 August 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD
Secretary

23 OCTOBER 2019