Defrey & Radnor
[2021] FamCAFC 67
•12 May 2021
FAMILY COURT OF AUSTRALIA
Defrey & Radnor [2021] FamCAFC 67
Appeal from: Defrey & Radnor [2020] FCCA 713 Appeal number(s): EAA 54 of 2020 File number(s): SYC 3980 of 2012 Judgment of: AINSLIE-WALLACE, WATTS & TREE JJ Date of judgment: 12 May 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the appellant father’s application to amend final parenting orders – Where the primary judge ordered the parties attend arbitration to resolve parenting disputes – No power to refer parenting matters to arbitration – Where the primary judge made a costs order against the father – Inadequate reasons given for the costs order – Where the father was not wholly unsuccessful – Appeal allowed in part – Orders made for the filing of evidence and submissions relating to whether this Court should re-exercise or remit – Costs reserved. Legislation: Family Law Act 1975 (Cth) ss 10L, 13E, 60CC, 65DAC, 69ZQ, 117 Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Appeal Division Number of paragraphs: 105 Date of hearing: 16 February 2021 Place: Sydney Counsel for the Appellant: Mr Weightman Solicitor for the Appellant: Conditsis Lawyers Counsel for the Respondent: Ms Smallwood Solicitor for the Respondent: Lander and Rogers ORDERS
EAA 54 of 2020
SYC 3980 of 2012APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR DEFREY
Appellant
AND: MS RADNOR
Respondent
ORDER MADE BY:
AINSLIE-WALLACE, WATTS & TREE JJ
DATE OF ORDER:
12 MAY 2021
THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.To the extent that Order 1 made 9 April 2020 dismisses Orders 3–19 and 28–29 sought in the father’s Initiating Application filed 7 November 2019, Order 1 is set aside.
3.Orders 2–5 made 9 April 2020 are set aside.
4.The question as to whether the mother’s application to dismiss Orders 3–19 and 28–29 of the father’s Initiating Application filed 7 November 2019 is to be heard by this Court or remitted for rehearing at first instance, is reserved.
5.Within twenty-one (21) days the appellant file any updating affidavit and written submissions upon which he seeks to rely.
6.Within a further twenty-one (21) days the respondent file any updating affidavit and written submissions upon which she seeks to rely.
7.Within a further seven (7) days the appellant file any further affidavit and written submissions strictly in reply to any matter raised by the respondent, with which the appellant has not otherwise dealt.
8.Costs are reserved and the dates and times in Orders 1–3 made 16 February 2021 in respect of filing submissions as to costs shall commence from the delivery of the Full Court’s reasons on the question of whether this court re-exercises discretion or remits the matter for rehearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Defrey & Radnor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, WATTS & TREE JJ:
INTRODUCTION
By Notice of Appeal filed 7 May 2020, Mr Defrey (“the father”) appeals from orders made by a judge of the Federal Circuit Court of Australia on 9 April 2020, dismissing his application for variation of parenting orders, having determined, as a preliminary issue, that the father’s application did not satisfy the threshold test in Rice and Asplund (1979) FLC 90-725 (“Rice & Asplund”) and subsequent cases which have amplified that test. Ms Radnor (“the mother”) opposes the appeal.
The focus of the litigation is the one child from the parties’ relationship, X (“the child”), who was eight years of age at the time of the hearing (now approximately nine years).
Whilst the parents have been generally compliant with the current orders, they are in high conflict. The father is critical of the mother’s attitude to parenting and the changes he proposes. The more the father criticises the mother and presses his views about what is in the child’s best interests, the more the mother seeks to strictly abide by the current orders. The mother wishes the current orders to continue.
For reasons which follow, the appeal will be allowed in part.
BACKGROUND
After a four year cohabitation, the parties separated when the child was 10 months old.
Litigation between the parties in relation to the child commenced the month following separation. There were several sets of interim parenting orders. An Independent Children’s Lawyer was appointed. A family report was released in March 2015. On 13 April 2015 the parties, by consent, entered into a final property settlement order.
The final parenting proceedings were set down to commence on 5 May 2015. On that day the father was represented and makes no complaint about that representation. The controversy between the parties was resolved when final parenting orders were made by consent (“the 2015 orders”), which can be summarised as follows:
(a)The parties have equal shared parental responsibility;
(b)The child live with the mother;
(c)The child spend increasing time with the father over three stages so that by October 2016 he was spending four nights a fortnight with the father during the school term. There was a provision that the child could see the father at such other times as may be agreed in writing between the parties but no subsequent agreement has been reached;
(d)The child spend time with the father during school holidays on an increasing basis so that by June 2018 he was spending seven consecutive nights with the father during the term 1, 2 and 3 school holidays and one half of the Christmas school holidays on a week about basis;
(e)Time on special days;
(f)Changeovers at school, if applicable, and if not, at one of two shopping centres depending upon whom the child was with;
(g)Orders that the parties notify each other about particular matters relating to the child;
(h)Provision for overseas travel;
(i)Facilitating and encouraging the child’s telephone calls to the other parent; and
(j)Other ancillary and consequential orders.
Relevant to the primary judge’s consideration of this matter, Order 21 of the 2015 orders, provided that within 28 days the parties make arrangements to attend upon the child’s psychologist, Ms E, or such other child psychologist as agreed for the purposes of both undertaking such therapy as is recommended in relation to any psychological or developmental concerns that either parent has in relation to the child. Order 23 provided that prior to any increase in time with the father pursuant to the 2015 orders, the child psychologist appointed by the parties or her nominee review the arrangements with the parents with a view to addressing any concerns of either parent in relation to the child’s welfare.
As indicated, overall there has been a high compliance from both parties with the 2015 orders.
By September 2018 the father commenced to ask the mother to have parts of the 2015 orders varied. On 18 September 2018 the father sent a text message to the mother indicating that he had been to R Services and that they will send an invitation to her to attend mediation with him. On 9 October 2018 the father’s lawyers wrote to the mother’s lawyers suggesting that the mother engage with the father in mediation with a view to have meaningful discussions about parenting arrangements. In a response of 22 October 2018, the mother’s lawyers expressed the view that the issues raised by the father were “relatively minor and narrow in scope” and that “a roundtable discussion [was] unnecessary and of little benefit to the parties” at that stage (Annexure “A-05” to the father’s affidavit filed 4 February 2020).
A high level of tension developed between the parents in relation to parenting arrangements. In the second of two letters written by the father to the mother’s lawyers on 29 April 2019, the father expresses the view “there is no productive co-parenting relationship between [the mother] and I. This is because [the mother] is fundamentally inflexible and wishes to control [the child] entirely and there is no room in her mind for me to be a co-parent”. In that same letter the father proposed mediation through R Services. On 19 July 2019 the mother’s lawyers wrote to the father asking that he “desist from sending… a plethora of letters” and reiterating that the mother sought to rely on the court orders and that she was “not prepared to discuss any further changes” to the orders (Annexure “R-1” to the mother’s affidavit filed 11 December 2019).
On 7 November 2019 the father filed an Initiating Application for a variation of the final orders. That application did not seek the discharge of the 2015 orders and it is tolerably clear that the father wished some of the orders made in 2015 to continue. The application repeated verbatim a number of the orders that had been made in 2015. The changes to the 2015 orders that the father sought in this application can be summarised as follows:
(a)The father sought that the child spend equal time with him during school term (Order 2). In the alternative, five nights a fortnight (one night more than the 2015 orders) (Order 3) and in the further alternative, the same amount of time as the 2015 orders but reconfigured so that it was in the one block from Thursday after school to Monday before school each alternate weekend (Order 4);
(b)A consolidation of Christmas school holiday time so that it was not taken in alternate weeks but rather that the child spend one block of time with each parent during Christmas school holidays (Order 6);
(c)A minor tweak to the commencement of school holiday time in terms 1, 2 and 3 so that what happened in even and odd numbered years was defined (rather than what was provided in the 2015 orders, namely that term holidays start in sync with the sequence in which alternate weekend time was occurring during school term) (Order 5);
(d)Doing away with the provision for changeovers at shopping centres and having it occur at the homes of each parent, depending on whom the child was with (Order 12);
(e)Amplifying the international travel order (Orders 13–15); and
(f)Further defining arrangements in relation to telephone communication (Orders 27–29).
We pause to make some comment about the father’s application in relation to the time the child spends with him during school term. As indicated, the father’s formal application for final orders advances three cascading proposals, the first of which is an equal time arrangement. However, in his evidence in support of that application and in his submissions to the primary judge, the father only refers to his second proposal (increasing time by one night to five nights a fortnight) and his third proposal (a reconfiguration of the existing four night arrangement). The father confirmed that his proposals were that time be increased “slightly” or not at all (father’s affidavit filed 7 November 2019, paragraph 14; and father’s affidavit filed 4 February 2020, paragraphs 10–11). At paragraph 26 of the father’s first written submissions filed 12 February 2020, he asserts his application would not “be considered radical”. The effect of the father’s second proposal, was to seek an order for the child to spend additional time on the Thursday night between the Wednesday and the Friday nights that the child currently spends time with him so that he had a continuous period of five nights with the father. The third proposal was to move the current Wednesday night to the following night so that the child spent the same amount of time with the father but in one block and eliminating any Wednesday night time.
The primary judge was correct in approaching the matter on the basis that the father was not pressing an application for an equal time order.
The father also sought orders which were not dealt with in the 2015 orders as follows:
(a)Orders in relation to extra-curricular activities and international school excursions;
(b)Orders in relation to passports; and
(c)A non-denigration order.
LAW IN RELATION TO RICE & ASPLUND
The evidence of the father had to be accepted at its highest, and as Warnick J said in SPS and PLS (2008) FLC 93-363 (“SPS and PLS”) at [81] and [84], the essential question to be asked is, assuming the evidence of the father is accepted, are the “new events” sufficient to provoke a new enquiry (see also Miller & Harrington (2008) FLC 93-383 at [105], noting that an alternative formulation of the question has been propounded by the Full Court in Marsden v Winch (2009) 42 Fam LR 1 at [58] with the emphasis on the establishment of a prima facie case of change of circumstances).
As indicated, the father submits that the changes to the orders he proposes are not radical and consequently the changes which he relies upon to justify a reopening of the litigation need not be substantial.
In SPS and PLS, Warnick J said at [48(v)] and [82]–[83]:
48.… The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
…
82.This proposition lay behind what Evatt CJ said in In the Marriage of Zabaneh (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.
83.Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
THE CASE PRESENTED TO THE PRIMARY JUDGE
The parties initially appeared before the primary judge on 13 December 2019. The father filed an affidavit of 38 pages in support of his application for final orders and the mother filed an application seeking a preliminary determination of the issue under Rice & Asplund supported by a 38 page affidavit. The primary judge heard the mother’s application as a preliminary issue. After some discussion of the issues arising, the primary judge made directions allowing the father to file an affidavit in response and for each party to provide written submissions. The father filed an affidavit of 116 pages on 4 February 2020. The primary judge then dealt with the matter on the papers. The primary judge sets out in the reasons for judgment, the full text of the written submissions of each of the parties.
The only other material that was placed before the primary judge, that was before the Court when the 2015 orders were made, was the family report.
ORDERS AND REASONS FOR JUDGMENT
The primary judge made the following orders:
1.Subject to the following Orders, the Father’s Application, filed 7th November 2019, be dismissed;
2.The Father pay the Mother’s costs, either as agreed or taxed;
3.Within 14 days of the date of these Orders, being by 23 April 2020, the parties are to provide Chambers with an agreed form of Orders regarding:
(a)obtaining a passport for the child, and
(b)the provision of information to either or both parents regarding the child’s participation in non-school activities;
4.Absent agreement regarding the form of Orders in relation to Order 3 of these Orders, the parties are to attend mediation, and in the absence of resolution, the parties are to attend arbitration, with the costs of both processes to be borne equally by the parties;
5.Regarding any other issue relating to the past and current parenting Orders, the parties are to attend mediation in the first instance, and failing agreement, they shall attend arbitration, with the costs of both processes to be borne equally by the parties.
The primary judge discussed each change proposed by the father. His Honour described the contest as being about a few “modest aspects” of the 2015 orders (at [8]); his Honour considered the changes the father sought in relation to term time (at [30]–[31]); holiday time (at [32]); school excursions (at [33]) and changeovers (at [37]–[38]). In each case the primary judge concluded that the father had failed to meet the preliminary test.
The feature of the primary judge’s reasons, which complicate this appeal, is that contemporaneously with making those findings, the primary judge also found that the father still has a viable remedy to address his concerns about the mother’s parenting of the child via counselling, mediation or arbitration and Order 23 of the 2015 orders.
GROUNDS OF APPEAL
Ground 1
By Ground 1, the father complained that the primary judge erred in ordering that the parties participate in arbitration if they were unable to successfully agree on the form of orders concerning the passports and information sharing about the child participation in non-school activities (Order 4) or any “other issue relating to the past and current parenting Orders” (Order 5).
The Act makes provision for orders for arbitration of financial matters with the consent of the parties. There is no provision which allows arbitration for the determination of parenting disputes (s 10L and s 13E of the Act). The order requiring the parties to participate in arbitration was beyond power.
This ground of appeal was conceded by the mother prior to the father filing the Summary of Argument on 23 September 2020 and the mother agreed that Orders 4–5 be set aside in their entirety.
Ground 2
By Ground 2, the father asserts that the primary judge’s exercise of discretion, in dismissing the father’s application, miscarried because of 13 errors that were made by the primary judge which individually or cumulatively infected the exercise of discretion.
We shall deal first with the grounds of appeal (2(c)–(l)) which relate to the preliminary test and then that part of his Honour’s reasons which leads us to allow the appeal in part (Grounds 2(a)–(b) and (m)).
Term time (Grounds 2(c)–(e))
The history of the child’s time with the father was as follows:
(a)The 2015 orders provided that the child spend time with the father for three nights each alternate weekend and overnight on the Wednesday in the other week after that weekend.
(b)After the orders were made, the child went to the father on the wrong Wednesday night (the one immediately before his weekend time).
(c)By January 2016 the father had acquiesced to this arrangement, notwithstanding it was not what was required by the 2015 orders.
(d)On 29 April 2019 the father wrote a five page letter to the mother’s solicitors generally complaining about matters that he believed were problematic in respect of the mother’s parenting and amongst other things, complained:
3.2For a considerable period of time, we have had an unusual arrangement which is contrary to the Orders of the Court. The Orders of the Court contemplate that I would have [the child] on a Wednesday on the “off” week. Yet, [the mother] has insisted that the Orders are to be interpreted such that [the child] comes to me on the Wednesday evening of the week where I have him for the weekend – the “on week” – returns to school and [the mother’s] home for the Thursday, and then has to travel again back to my house on the Friday – all in the same week. This has never made sense, it is unreasonable and not in [the child’s] best interest and it is contrary to the Orders of the Court. All points previously raised by my lawyers.
(Annexure “A-08” to the father’s affidavit filed 4 February 2020) (As per the original) (Emphasis in original)
(e)The mother in response changed the arrangements for the child’s mid-week time so that it complied with the 2015 orders. Her lawyers responded on 11 June 2019 in the following terms:
5.Our client agrees that there has been a misunderstanding as to the interpretation of the Court orders and that the usual arrangement as to the orders should now apply. This means that you spend time with [the child] on the off week on the Wednesday evening, commencing 31 July 2019.
(Annexure “R-1” to the mother’s affidavit filed 10 December 2019)
(f)The father at paragraph 53(a) of his affidavit filed 4 February 2020 argues:
… Whilst it is true that I raised [the mother’s] incorrect interpretation of the Orders some 4.5 years earlier, I believe that comment should not be read in isolation and taken out of context, particularly when I had just proposed in that same letter that the usual Wednesday remain.
Although it is true that the father proposed the existing Wednesday night remain, it was in the context of the child spending an additional night with him.
(g)The father now argues that the mother’s change of a four and a half year arrangement back to what the 2015 orders required is a sufficient change to reopen the question of the time the child should spend with him during school term.
At [30] and [31] of the primary judge’s reasons, his Honour says:
30.The first issue relates to “usual time” (Orders 3c and 4vi). Here, the Father’s concern relates to the configuration of the “time with” arrangements under the Orders, as opposed to what has actually happened between the parties over the years since the Orders were made. The Father contended that the Mother unilaterally changed the configuration of the time that [the child] spent with his Father. The amount of time was basically the same; the change related primarily to the configuration of it.
31.For my part, given that no Application was made by the Father about this changed configuration since 2015, I doubt the utility of dealing with this aspect now, in 2020. In my view, such an issue does not come within the principles from Rice & Asplund and subsequent cases in circumstances where the Father has effectively tolerated the changes for a number of years about which he now complains…
The father submits that the primary judge at [31] failed to understand that his complaint was about the mother’s change to arrangements in 2019, not to what had happened to the configuration immediately after the orders were made in 2015. The father complained that although the child still had an identical amount of time with him, the mother had changed the arrangement in the child’s living circumstances that had been a routine to which he had been accustom for four and a half years.
Whilst the primary judge may have been misdirected by the complaint the father made in his letter of 29 April 2019, we accept the primary judge made an error when misunderstanding that the father’s current challenge was that the mother had now done what he had previously complained she had failed to do.
In determining this challenge however, the asserted error of fact in the judgment at [31] has to affect the final result or that its effect is more than negligible (De Winter and De Winter (1979) FLC 90-605).
Apart from asserting that the mother had changed what the child had been used to for four and a half years, the father did not demonstrate why the change was otherwise consequential. The error that the primary judge made was not material.
Grounds 2(c)–(e) fail.
School holidays (Ground 2(f))
It is to be observed that the child’s time with the father during school holidays had only increased to equal time from June 2018 and that in relation to term 4 school holidays, 2018/19 was the first occasion which the new arrangement had commenced.
The father complains that the primary judge failed to consider the benefit to the child in avoiding future conflict between the parties, by the making of holiday orders that provide a clearer timetable for holiday time between the child and the father.
The father asserts that in April 2019 there was some confusion about the dates the child would be with the father during school holidays under the 2015 orders but any confusion was resolved between the parties prior to that holiday time taking place. The father also pointed to the fact that in March 2019 the mother, in correspondence to the father, confused the week that the child’s term 4 was scheduled to end. The father drew that confusion to the mother’s attention in the documents that he filed with his application to the court and the mother immediately recognised her error. The father otherwise suggests that switching term 4 school holidays from week about to two blocks of time would reduce the number of changeovers, the length of time on the road between changeovers if one of the parties is away from Canberra and better facilitate possible future overseas travel.
When considering the assertion by the father that holiday orders needed a clearer timetable, the primary judge at [32] doubts holiday orders that have been in force for four years are a source of confusion and categorised the father’s evidence about holiday times as “his perception of what is now in [the child’s] best interests” and his “preference”. It was open to the primary judge to find that the 2015 orders about holidays were clear and matters that the father had raised in relation to holidays did not constitute the requisite change in circumstances.
Accordingly there is no merit in Ground 2(f).
Changes associated with the child (Grounds 2(g)–(i))
Grounds 2(g)–(i) assert that the primary judge:
(g)Fail[ed] to consider the father’s evidence in regards to the significant and unexpected changes/improvement in the child’s behaviours since the making of the orders on 5 May 2015.
(h)Fail[ed] to properly consider the father’s evidence as to his current relationship with the child.
(i)Fail[ed] to consider the father’s evidence asserting the child’s views.
As indicated, not all the evidence that was before the court in 2015 was provided to the primary judge. The father relies upon a statement in his affidavit filed 4 February 2020 that:
1.Following our separation and prior to the Final Orders, [the mother] reported that [the child] was exhibiting regressive and aggressive behaviour when [the child] was returned to [the mother’s] care…
The father relies upon observations made by the family consultant in 2015 (at paragraphs 6, 17, 18, 27, 28, 30-34 and 36–42 of the family report dated 17 February 2015). At paragraph 6 of his affidavit filed 4 February 2020, the father asserts that the child’s “resilience has also grown beyond expectation, particularly having regard to the behavioural issues exhibited at the time of the Orders”.
The primary judge did not accept that the child’s emotional development from the age of three to the age of eight was “unexpected” (at [40]). The 2015 orders were made with an eye to the medium term and it was open for the primary judge to conclude they were predicated on the child getting older and being able to cope with being away from the mother four nights per fortnight and half of the school holidays by June 2018 (some 17 months before the father initiated the proceedings subject to the appeal).
The father complains that the primary judge does not properly consider the significance of the current sound and meaningful relationship between he and the child, yet it is tolerably clear that the primary judge was of the view that the end point of the 2015 orders must have been predicated on the child’s ability to develop a relationship with the father as he grows older in a way that would allow him to cope with the increased time. Again it was open to the primary judge to conclude that the fact that the child does have a meaningful relationship with the father is not in itself a change in the medium term, that the parties did not foresee when entering into the orders in 2015.
The father complains the primary judge did not take into account the child’s views in relation to extending holiday time. At paragraph 33 of the father’s affidavit filed 4 February 2020 he deposes to the fact that during school holidays in 2018 on two occasions, the child said to the father, “I want to stay longer”. An associated text message from the father to the mother would indicate that that was a wish to extend a one week holiday period by one day. That text message also included the following:
… [the child] and I were talking last night about his cousins in [Country G]. He has always wanted to go to [Country G]. He said that he had asked you but you said that he couldn’t until he was older. I asked, why did your mum say that… and he said I don’t know…he was disappointed because he wants to go…
(Annexure “A-04” to the father’s affidavit filed 4 February 2020) (As per the original)
Whilst it is true that the primary judge did not discuss the scant evidence in relation to the child’s views about extending holiday time, that is not to say the primary judge did not consider that evidence. In that context, it is relevant to note that the father was not actually seeking any order which would increase the amount of holiday time. A judge’s reasons are not required to mention every fact or argument relied upon by the losing party as relevant to an issue (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). The fact that the child, aged eight, may be reluctant to leave a fun holiday is not a change in circumstance of any weight.
There is no merit in Grounds 2(g)–(i).
Changeovers (Grounds 2(j)–(l))
As indicated above, the father’s application for final orders sought that the existing provision for changeovers at shopping centres be changed so that those changeovers happen at the respective homes of the parents depending upon whom the child was with.
The primary judge deals with this at [37]–[38] of the reasons in the following way:
37.The sixth issue relates to “changeovers” (Order 12). Again, by way of observation, there has been no Application since 2015 until the present. On its face, this fact would significantly militate against the issue constituting a “material (or significant) change in circumstances.” Moreover, the issues the Father raised in his Affidavit (pars.59 – 79) arise out of matters of logistics and/or contests between the parents. Surprisingly, the Father proposes that changeovers take place at the residence of each parent! One might reasonably have assumed that changeover at school (when it is open), and/or to have a third party do the changeovers (both very standard, preventative measures) might have been considered best.
38.Again, this does not come readily or easily within any “material change in circumstances.” It should be mediated or arbitrated to any future resolution.
The father challenges the primary judge’s findings on the basis that the primary judge erred by:
(a)Mistaking the facts in finding that the father’s application proposed that changeovers take place at the residence of each parent;
(b)Failing to consider the father’s proposal continued to provide for changeovers at the child’s school; and
(c)Taking into account as an irrelevant matter, the fact that the father had not made an application in four and a half years.
The father gives evidence about difficulties at changeover at paragraphs 59–79 of his affidavit filed 7 November 2019 and paragraphs 9–26 of his affidavit filed 4 February 2020, submitting that “[p]lainly these are not problems one would have contemplated at the time of the 2015 orders” (father’s written submissions filed 12 February 2020, paragraph 23). The father said there were problems on other occasions that he cannot now recall.
In reply, the mother correctly points out that the specific complaints made by the father relate to three incidents, the first of which took place in November 2016 and the second in August 2018. At one point, the mother had in fact offered changeovers at school on the basis that the father commit to being at school on time and that proposal was refused by the father who insisted changeover happen at the shopping centre at 5.30 pm. The mother accurately submitted to the primary judge that there had been around 500 changeovers between the parties.
The father makes general allegations of the child suffering from anxiety at changeovers but there is no specific evidence to corroborate that. Given the few historical examples, the primary judge was entitled to take into account as a relevant consideration the fact that the father had not made an application at an earlier time.
The father submits that the primary judge was wrong because he had not taken into account that the father’s application was to change the existing order from 5.30 pm on Wednesdays and Fridays to after school on Wednesdays and Fridays so that changeover for those occasions would have been from school. However, the primary judge had already indicated why his Honour did not intend to entertain that application and in that context, the statement by the primary judge was not an error.
Grounds 2(j)–(l) fail.
Alternate dispute resolution (Grounds 2(a)–(b))
At [7] of the primary judge’s reasons, his Honour makes this general statement:
7.One might also venture the further observation that it would be certainly a quicker and generally expeditious exercise if such disputes that are on display here, which primarily are matters of logistics and negotiation, were to be resolved through mediation in the first instance, and absent agreement, through arbitration.
When discussing a number of the specific changes sought by the father, which the primary judge had otherwise found did not meet the test in Rice & Asplund, his Honour reiterated the view expressed in [7] as follows:
Usual time
31.… A “re-configuration” of time-with arrangements should be negotiated and resolved as I have indicated – through counselling, mediation, arbitration. Such basal matters should not consume the time and resources of the Court.
School excursions
33.… Thus, this issue does not relevantly meet the threshold of a material change in circumstances, and it should more appropriately be dealt with via counselling, mediation and arbitration.
International travel and passports
34.… Any other travel issues, like all other parenting issues, shall be determined and resolved by mediation and arbitration.
Extra-curricular activities
35.… Any other similar matters are to be resolved by the process I have earlier indicated – via mediation and arbitration.
Changeovers
38.… Again, this does not come readily or easily within any “material change in circumstances.” It should be mediated or arbitrated to any future resolution.
(Italicised emphasis as per the original)
Neither party suggested to the primary judge that the matter could be resolved by arbitration. It may be possible to resolve a parenting dispute with the assistance of non-court ordered arbitration if the parties subsequently signed consent orders or a parenting plan in the terms of the arbitral award, but given the terms of Orders 4 and 5 as made by the primary judge, it is unlikely that that is what his Honour had in mind.
Whilst the primary judge also said that such dispute should be resolved by counselling and mediation, and we endorse that course as a preliminary step, it does not provide a guaranteed pathway to quelling the controversy between the parties and in this case the mother has not agreed to voluntarily attend mediation. The mother, of course, has a set of final orders upon which she is relying and although usually it would be a good idea to do so, the mother is not required to involve herself in alternate dispute resolution if she believes those orders currently describe a set of parenting arrangements which are in the child’s best interests, unless she is ordered to do so.
Unfortunately, we find there is force in the argument that the primary judge’s consideration of the Rice & Asplund test was infected by him viewing the contest through the prism of there being an alternate dispute resolution process which would absolve the court from the responsibility of finally determining the dispute between the parents. Whatever processes may or may not be available through alternate dispute resolution, they are largely irrelevant to the determination which the primary judge was required to make, namely, whether the father’s applications should be dismissed because new events were insufficient to provoke a new inquiry.
We therefore conclude that there is merit in the challenge, raised by Grounds 2(a)–(b), that his Honour took into account an irrelevant consideration which distracted him from the proper exercise of his discretion.
Effect of Order 23 (Ground 2(m))
This ground is similar to Grounds 2(a)–(b) and asserts that the primary judge mistook the facts in finding that an increase in the child’s time beyond that provided by the 2015 orders was capable of being addressed through the process set out in Order 23 made in the 2015 orders.
Order 23 was in the following terms:
Prior to any increase in time with the father pursuant to these orders the Child Psychologist appointed by the parties review the arrangements with the parents with a view to addressing any concern of either parent in relation to [the child’s] welfare.
The child psychologist referred to in Order 23 was Ms E or such other child psychologist as agreed (Order 21).
When Order 23 refers to any increase in time “pursuant to these orders”, it is a reference to the cascading increase in the time that the child would spend with the father as provided in Order 3.
At [40] of the reasons, the primary judge says:
The eighth issue relates to an “increase in the Father’s time” (Order 23). An increase in time is addressed through the process set out in Order 23 of the existing Orders. That process is to be adhered to…
The father submits that the primary judge mistook the facts, as Order 23 did not make a provision for an increase in time to be addressed through the process set out in Order 23 of the existing orders. Rather, Order 23 provided that the consultation with the child’s psychologist was to occur prior to the increase in the child’s time with the father “pursuant to these orders” – that is, the increase from Order 3(a) to 3(b) and then from 3(b) to 3(c). It would also apply to Order 3(d) of the 2015 orders, namely, “such other times as may be agreed in writing between the parties”, although no further time has been agreed between the parties.
There is merit in Ground 2(m).
Conclusion in respect of Ground 2
Based upon the father’s presentation of his case, the primary judge was correct in dismissing that part of the father’s application which sought an equal time order during school term (Order 2 of the father’s Initiating Application filed 7 November 2019).
The primary judge’s dismissal of applications in relation to increased term time by one day a fortnight, reconfiguration of existing term and holiday time, school excursions and international travel and changeovers, cannot survive given the merit we have found in grounds 2(a)–(b) and (m).
There is an additional reason why the father’s application concerning the child’s international school excursions should not have been dismissed on a preliminary basis. In the father’s application for final orders filed 7 November 2019, he sought Order 10 in the following terms:
That in the event the Child takes international school excursions, without in anyway limiting the party’s rights for international travel with the Child pursuant to Orders 14, 15 and 16 the father be at liberty to travel with the Child on the next International school excursion the Child attends and the Mother be at liberty to travel with the Child on the following international school excursion that the child attends and the parents alternate thereafter such that the parents would not travel in the same international school excursion for any future international school excursions with either [the child’s] primary or secondary school.
(As per the original)
There was a proposal that the child travel with the school to Country F in 2020 and again in 2022. The mother is of European descent and the father has enthusiastically embraced the child’s maternal heritage and makes the point that his current partner speaks the language of Country F fluently. The 2020 trip did not take place due to the global pandemic.
The mother proposes that both parents be able to go on each trip and have their time with the child equally apportioned whilst he is away.
The father sets out why he opposes this arrangement in his affidavit filed 4 February 2020:
60. …
(a)The parental group attending the trip are expected to share their time together on the trip working together with specific roles in supervising children activities and attending social events together. Should [the mother] and I have a disagreement in this context, it could potentially be very embarrassing and damaging for [the child]…
Given this issue revolves around a school trip, the dispute falls comfortably within the rubric of the existing 2015 order for equal shared parental responsibility (Order 1). The parties have not reached a joint decision as required by s 65DAC(2) of the Act. Both parties have taken irreconcilable positions. Given that this is a dispute arising out of the 2015 order, it would have been appropriate for the primary judge to entertain and determine that controversy. Given that s 65DAC(3) requires the parties to make a genuine effort to come to a joint decision about this issue, the primary judge may have considered as a preliminary step ordering the parties to attend mediation to discuss this issue.
At the hearing before the primary judge, the child still did not have a passport. Both of his parents professed that they wished him to have one. In a sad history, each blamed the other for not facilitating compliance with the necessary formalities to get one. Thankfully, the mother records at paragraph 3 in her Summary of Argument filed 21 October 2020 that the child now has a passport.
The primary judge indicated he intended to make orders in relation to passports and notifications in respect to extra-curricular activities.
At [34] the primary judge concluded it was appropriate to make a specific order in relation to the child’s passport:
… For more abundant caution, and to prevent any future futile but costly contest, in my view a specific, a [sic] machinery Order in this regard should be made. It should simply provide that either parent shall be at liberty to obtain a passport (or any renewal of it), and the other parent shall sign any and all forms in relation to such Application. If the other parent does not so sign within 21 days, the Registrar of the Court may do so under s.106A of the Act…
Similarly at [35], the primary judge concluded it was appropriate to make a specific order in relation to “extra-curricular activities”:
… I am prepared to make a machinery Order for the provision of information regarding [the child’s] sporting endeavours. Such an Order shall simply provide that, within 14 days of the child being registered (or similar) for any sport or non-school activity, both parents are to keep the other parent informed of any extra-curricular activities of the child…
Rather than making orders in these terms, the primary judge made Order 3 which was in the following terms:
3.Within 14 days of the date of these Orders, being by 23 April 2020, the parties are to provide Chambers with an agreed form of Orders regarding:
(a)obtaining a passport for the child, and
(b)the provision of information to either or both parents regarding the child’s participation in non-school activities…
It is unclear to us as to why the primary judge required the parties to agree on the form of orders his Honour had already formulated, and why, for reasons which were unexplained by the parties, they were unable to reach an agreement on terms of orders that his Honour had already set out in his reasons.
The unfortunate result will be that the mother’s opposition to the father’s applications about passports and notifications relevant to extra-curricular activities is yet to be resolved.
Also, during the hearing before the primary judge, the father did not refer to his application for a non-denigration order (Order 30 as sought) and it was appropriate for the primary judge to dismiss that application.
There were nine other orders sought in the father’s application for final orders filed 7 November 2019 (Orders 1 and 20–27) which repeat existing and identical orders contained in the 2015 orders. The primary judge was justified in dismissing applications which replicated those parts of the 2015 orders.
The final result is that the father shall be successful in his appeal against that part of Order 1 made by the primary judge on 9 April 2020 which dismisses Orders 3–19 and 28–29 sought in the father’s application for final orders filed 7 November 2019. The mother’s application that those applications be dismissed as a preliminary matter shall need to be reheard.
Costs order (Grounds 3–5)
The Notice of Appeal challenges the costs orders made by the primary judge on the basis that his Honour erred:
(a)By failing to afford the father procedural fairness and failing to grant the father an opportunity to be heard at all prior to making the costs order;
(b)By failing to give reasons in respect of the costs order; and
(c)In exercising discretion to make a costs order when the primary judge failed to find that there were circumstances that justified the making of a costs order.
Section 117(1) of the Act provides that each party is to pay their own costs. It is unusual in a parenting case for costs orders to be made at first instance. Prior to the making of a costs order, the primary judge needed to be of the opinion that there were circumstances justifying the order being made, and then for that order to be one that the primary judge considered just. In considering what order (if any) should be made, it is mandatory that the court have regard to those considerations set out in s 117(2A) of the Act.
There is no substance to the father’s complaint that he was denied procedural fairness. The father was on notice that the mother sought costs against him. Those costs were sought in the mother’s Response to Initiating Application filed 11 December 2019. They were also set out in her written submissions filed 26 February 2020 which were referred to in the primary judge’s reasons for judgment. The father was given an opportunity to reply to those submissions and did so on 2 March 2020, again as quoted in the judgment by his Honour. The costs of appearance before the primary judge were reserved at the request of the mother and by Order 5 of the orders made 13 December 2019. We are satisfied that the father had more than ample opportunity to respond on the issue of costs.
However, there is substance to the remaining complaint. The father argues that the primary judge gives no explicit reasons for making the costs order.
There is a single line in the primary judge’s reasons about costs which is as follows:
42. … The Father should pay the Mother’s costs, either as agreed or taxed.
The mother argues that given the findings that the primary judge made against the father, the reason for making the cost order is sufficiently clear, namely, that the father was wholly unsuccessful. However, the primary judge purported to make an order in relation to two of the matters agitated by the father.
The primary judge did not express any reasons for making the costs order and we are not able to guess what they might have been. What appears in the reasons for judgment is not adequate (Bennett and Bennett (1991) FLC 92-191).
In any event, the appeal has been successful in part and it would not accordingly be appropriate to allow the costs order to stand on the basis that the father had been wholly unsuccessful.
REMITTER OR RE-EXERCISE?
In the event that the appeal was successful or partly successful, the mother sought that this court re-exercise the primary judge’s discretion. The mother indicated that she had filed the documents that she wished to rely upon.
The father sought that the matter be remitted for rehearing at first instance. In the event that we were of a view that it was appropriate for this Court to re-exercise the primary judge’s discretion, then the father indicated that he wished to have an opportunity to file additional updating evidence upon which he sought to rely.
In those circumstances, the mother wished to reserve her right to file any evidence in response to any new evidence that the father wishes to rely upon.
Before making a decision about whether or not to re-exercise, it is appropriate that we make directions for the filing of the evidence upon which both parties seek to rely and any further updating submissions they seek to make. We will then make a determination as to whether or not the matter proceeds by way of re-exercise of discretion or the matter is remitted for rehearing on the preliminary question.
COSTS OF THE APPEAL
Both parties have provided schedules of costs. The father asks that the issue of costs be deferred until such time as the outcome of the proceedings was known, implying that the father may wish to rely upon a written offer of settlement.
On 16 February 2021 we made directions in relation to the provision of written submissions on the question of costs of the appeal operative after the delivery of our reasons for judgment. It is appropriate for the time under those orders to commence from when this Court has determined whether to re-exercise discretion or remit the matter for rehearing.
We shall otherwise reserve the issue of the costs of the appeal.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Watts & Tree. Associate:
Dated: 12 May 2021
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