E AND L

FAMILY COURT OF AUSTRALIA

E AND L

[2006] FamCA 1047

APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – WITH WHOM A CHILD LIVES – CHANGED CIRCUMSTANCES – Parenting orders in relation to the children of the parties were made in the Family Court in October 2002, which provided that the children live with the mother – In 2005, the father applied to the Federal Magistrates Court for the discharge of the parenting orders on the ground of changed circumstances – The father argued that the mother had failed to attend to the health needs of one of the children, who was diagnosed as suffering from a human growth hormone deficiency – After a preliminary hearing in mid-2005 to consider the ‘threshold’ question of changed circumstances, the Federal Magistrate listed the matter for a final hearing – At the final hearing, the Federal Magistrate dismissed the father’s application, finding that there was no significant or substantial change in circumstances to warrant a change in the current orders – On appeal, the father argued that, having resolved the “threshold” question at the preliminary hearing, the Federal Magistrate re-determined the “threshold” question again at the final hearing – The purpose of the preliminary hearing was to determine whether there were sufficient grounds to warrant a full hearing of the residence application on the merits – Despite the description of the preliminary hearing by the Federal Magistrate as determining whether a change of circumstances warranted “a change in the current orders”, the father should have been under no misapprehension surrounding the basis of the hearing – In any event, at the final hearing the father was able to put before the Federal Magistrate all that he wished to in support of his application and was not disadvantaged.

In the Marriage of Rice and Asplund (1979) FLC 90-725

APPELLANT:

RESPONDENT:

FILE NUMBER:

BRM

5165

2003

APPEAL NUMBER:

2006

DATE DELIVERED:

17 October 2006

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

WARNICK J

HEARING DATE:	10 OCTOBER 2006
LOWER COURT JURISDICTION:	Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

9 June 2006

LOWER COURT MNC:

[2006] FMCAfam 398

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Crisp

SOLICITORS FOR THE APPELLANT:

Burchill & Horsley Lawyers, PO Box 506, Chermside South QLD 4032

COUNSEL FOR THE RESPONDENT:

Mr Hamwood

SOLICITORS FOR THE RESPONDENT:

SJP Law, 34 Duporth Ave, Maroochydore QLD 4558

Orders

That the appeal be dismissed.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 57 of 2006
File Number: BRM 5165 of 2003

Appellant

And

Respondent

REASONS FOR JUDGMENT

In October 2002, after a three day trial between the appellant father and respondent mother, May J made orders about parenting issues, notably residence, relating to the couple’s two children. The children were to live with the mother and have regular contact with the father. The child “B” was then 8 years old and “C” 5 years of age.
In 2005 the father applied in the Federal Magistrates Court for discharge of the orders of May J and for orders that the children live primarily with him or alternatively with each parent on a week-about basis.
After a trial in mid-2006, Jarrett FM concluded that “There is no significant or substantial change in circumstances to warrant the revisiting of the welfare of these children”, and dismissed the father’s application. However, there had been an earlier hearing, in accordance with an order (9 June 2005) that read as follows:
“That before a final determination of the Application, the Court determine separately as a preliminary issue, whether there has been a sufficient change in circumstances to warrant a change in the current orders.”
The hearing of the “preliminary issue” had taken place in August 2005 and the decision in respect of it was pronounced on 13 January 2006, when an order was made “That the matter be set down for final hearing…”
In this appeal by the father against the dismissal of his application in mid-2006, the essential argument for the father was that, having once resolved the “preliminary” or “threshold” question of whether there had been sufficient change in circumstances to warrant examining the merits of the parties’ competing positions over residence, it was not open to the Federal Magistrate to dismiss the father’s application on the basis that there was not sufficient change.
There are other grounds of appeal, but they are in the nature of “supporting” arguments and received less attention in the hearing of the appeal.
After abandonment of ground 10, nine grounds of appeal remained. Of them, counsel for the father wrote in his summary:
“1.The Appeal can be grouped into two main areas. They are:
(a) The “Rice v Asplund Ground, being appeal grounds 1-3 inclusive supported by grounds 4-9 inclusive;
(b)Supporting Appeal Grounds, being appeal grounds 4-9 inclusive.”

Did the Federal Magistrate err as alleged in the essential argument? Grounds 1‑3

As framed, grounds 1-3 were:
“1.The Federal Magistrate erred in considering the threshold issue of changed circumstances at trial when the threshold issue had been previously heard and determined in a separate hearing on 11 August 2005.
2.The Federal Magistrate erred in the application of the principles of In the Marriage of Rice and Asplund at trial.
3.The Federal Magistrate erred in making findings at trial that there were no changed circumstances since the orders of May J.”
Although ground 3 may read as if it is an attack on a finding of fact, it was treated in counsel for the father’s argument as an attack on the Federal Magistrate’s conclusion that circumstances had not changed sufficiently since the order of May J to warrant a full investigation of the merits of the case of each party in accordance with s 68F(2) of the Family Law Act 1975 as amended (as it stood at that time).
Counsel for the father disavowed any attack on the correctness of the principles set out in In the Marriage of Rice and Asplund (1979) FLC 90-725. His argument was, as ground 2 stated, that Jarrett FM had misapplied those principles. This misapplication, counsel for the father submitted, was apparent because the process followed to ultimate conclusion, (which included a trial) was inconsistent with the stated purpose underpinning the approval given in Rice and Asplund to the determination as a threshold issue of the question of whether there had been a sufficient change of circumstances to justify an investigation of the merits of the parties’ cases relating to matters such as residence. In his written submissions, counsel for the father put it this way:
“26.The purpose of applying the test in Rice v Asplund was clearly settled in King v Finneran where Collier J considered the rule as evolving to protect children from involvement in further unnecessary litigation by allowing the court the opportunity to make a threshold determination to enable an early end to litigation in the best interests of the children. The rule is an application of the paramountcy principle as set out in s60CA of the Family Law Act 1975.
27.Furthermore, the decision of King v Finneran (supra) upheld a discretion to deal with the matter either as a threshold issue or at the trial of the matter. A detailed determination of the s68F(2) factors is not required on determining the threshold issue.
28.The Full Court in The Marriage of D & Y (supra) held that in circumstances where the issue of custody has been litigated on a defended basis a little over two years previously, a Judge would be extremely loath to reopen the issue of custody, except on strong grounds. The change or fresh circumstances must be such that upon becoming advised of it and being satisfied of it’s existence, a court would be left in no doubt that it was necessary to re-litigate the parenting issue in dispute between the parties.
29.The Federal Magistrate heard and determined the threshold issue on 11 August 2005. It is submitted that the Federal Magistrate having heard and determined the threshold issue on 11 August 2005 as a discrete issue went on to hear and determine again the threshold issue at trial on 20 and 21 June 2006.”
The seeds of this argument’s failure lie within the above submissions which:
• acknowledge a discretion to deal with “the matter either as a threshold issue or at the trial of the matter” (emphasis added);
• carry the necessary implication, because the question of changed circumstances may be considered at the end of a trial, that the avoidance of further litigation is not the sole purpose of the “threshold” approach. Another purpose is to give appropriate weight to the earlier determination;
• concede that “a detailed determination of the s 68F(2) factors is not required on determining the threshold issue; and
• argue (wrongly) that the Federal Magistrate heard the threshold issue on 11 August 2005 and determined it on 13 January 2006.
Appealable error may well occur if a court determined that a change in circumstances sufficed to warrant a change in current orders (that being the description of the preliminary issue, as stated in order 3 of the orders of 9 June 2005), but then, at a later hearing, determined that there had been insufficient change to even warrant a revisiting of the welfare of children.
It is perhaps unfortunate that the “preliminary issue” was described in the order of 9 June 2005 as one of determining whether a change of circumstances warranted “a change in the current orders”, rather than warranting a full hearing of the residence application on the merits, or some like terms.
However, even then, an inconsistency would arise if the preliminary determination was that there was sufficient change in circumstance to warrant revisiting the welfare of the children and then, upon that subsequent hearing, the finding was that there was insufficient reason to warrant revisiting that issue.
Here however, notwithstanding the description of the preliminary issue in the order of 9 June 2005, no such inconsistency of findings arose.
As earlier seen, the hearing to address the preliminary issue took place on 11 August 2005 but judgment in respect of that issue was not delivered until 13 January 2006. The order made that day advancing the father’s application to trial was also earlier indicated. In his reasons for that order, the learned Magistrate said:
“2.On 9 June, 2005 I ordered that the issue of whether there had been a significant or sufficient change in circumstances to warrant a change in certain pre-existing orders to be determined separately. I have determined that the application should proceed. I am satisfied that if the father’s material relied upon in the application is accepted by the Court at a trial there may be reason to revisit the welfare of the children, [B] and [C] in these proceedings. That is not to say that a change would be made, but it seems to me that there may be sufficient reason for their welfare to be revisited.
3.Many of the allegations relied upon by the father are disputed by the mother. However, an application such as this must be approached on the basis that the father is able to prove the allegations that me makes and on that basis if he was able to do so there may be reason, as I say, to revisit the welfare of these children. In those circumstances, I propose to set the matter down for trial.”
In my view, the father ought not have entered the trial in June 2006 under any misapprehension as to its basis.
In any event, counsel for the father acknowledged that at the trial the father put before the Federal Magistrate all that he wished to, bearing upon the merits of his application for residence. It is hard to see any disadvantage to the father even if he and his legal representatives misapprehended that the application would be determined on the basis that, prior to trial, the Federal Magistrate had ruled that the “threshold” had been crossed.
Though counsel for the father argues that the father’s case addressed a full hearing on the merits, not one directed to the question of whether sufficient change of circumstances was shown to warrant re-investigation, he did not argue that other evidence would have been called had what ultimately developed been anticipated, nor that in those circumstances evidence called would have been kept out.
Significantly, whatever the assumptions upon which he embarked upon the trial, counsel for the father was given the chance to address the correct position during addresses, when the following exchange occurred:
“[COUNSEL FOR THE FATHER]…
My learned friend put lengthy submissions to you in regard to Rice v Asplund. Now, as your Honour is well aware of that matter has already been litigated before you.
…
…You decided that there were circumstances strong enough to relitigate the matter following the decision of May J.
FEDERAL MAGISTRATE: No, I didn’t.
…
[COUNSEL FOR THE FATHER]: That was my understanding, your Honour.
FEDERAL MAGISTRATE: Well, your understanding is wrong.
…
[COUNSEL FOR THE FATHER]: Well, I’ll put it in a different way, I may not be correct in the way I put it to you, your Honour.
…
[COUNSEL FOR THE FATHER]: The threshold issue has been heard before you. There are two ways of dealing with the threshold issue as your Honour would be aware. That is as a threshold issue, as a separate hearing and within the hearing of the trial itself. Now, my understanding – and I can be corrected – but my understanding is that the matter has been heard as a threshold issue. It’s not a matter of my learned friend putting matters to you at the moment in cases to support the Rice v Asplund issue. The only - - -
FEDERAL MAGISTRATE: Well, having determined that if the husband’s case is to be accepted there may be grounds to revisit the welfare of these children, if I decide that the husband’s case is not to be accepted does it not follow as a matter of logic that there are no grounds on which the welfare of these children could be revisited.
[COUNSEL FOR THE FATHER]: Well, they’re matters I still have to address.”
I find no merit in the essential argument.
During oral argument counsel for the father referred me to numerous parts of the evidence relevant to s 68F(2) factors. He suggested that the learned Magistrate had failed to consider that evidence.
He especially stressed the absence of discussion by Jarrett FM of the children’s wishes. The father had deposed to wishes expressed by the children, particularly C, to him. However, what the father said contrasted with what the counsellor said were the children’s wishes.
In that situation and in view of the focus of the enquiry by the Federal Magistrate, I do not think absence of discussion of this s 68F(2) factor constitutes error.
As earlier seen, counsel for the father’s own submission was “A detailed determination of the s 68F(2) factors is not required on determining the threshold issue”.
I discern no error on this account in the learned Magistrate’s judgment.
Accordingly, I find no merit in these grounds.

Grounds 4-9

Ground 4

This ground is:
“4.That the Federal Magistrate erred in not finding that there was a risk that the mother had failed to attend to the health needs of the child, [B].”
There was evidence that B’s small size for her age, was a health concern. As found by Jarrett FM the father had taken B, apparently without notifying the mother, to see a “Dr H” in about mid-2003. Dr H had referred the father to a “Dr R”. By the time the matter was before the Federal Magistrate there was medical evidence that B suffered from human growth hormone deficiency. Jarrett FM said that the father’s case:
“…was that either the mother did not appreciate that [B] was in need of assistance or that she deliberately chose to ignore the problem.”
After discussing various contentions and medical evidence, the learned Magistrate expressed the finding which is particularly pertinent to this ground of appeal, namely:
“34.…The evidence suggests that the mother has always acted appropriately and has had no reason to act in a way other than in the way that she has acted until now.”
This of course is not a finding that the mother knew of B’s condition, but acted appropriately. Nor is it a finding that B did not have a condition that needed treatment. It is merely a finding that the mother behaved appropriately in respect of B’s health, given her state of knowledge from time to time.
This ground is expressed in terms that only indirectly attack the relevant finding, in that the assertion is that the Federal Magistrate erred in not finding “a risk” of failure by the mother to attend to B’s health needs. In his written submissions, counsel for the father argued:
“55.Given that the Respondent had [Dr R] report in 2003, that she had consulted doctors at least since 2000 in relation to [B]’s growth issues, that she had formed a view as to treatment for [B]’s condition at least from that time, that she was inconsistent in her evidence as to her earlier knowledge of the need to attend to [B]’s growth concerns, it is unlikely that she had not failed to act on her concerns. It is submitted that this evidence was sufficient to raise in the mind of the Federal Magistrate the Respondent’s failure to act on her concerns as to [B]’s growth issues and that the Respondent was aware of [B]’s health concerns prior to the consultation with [Dr R].”
In my view, that submission amounts to no more than that Jarrett FM might have found some relevant failure on the mother’s part. That proposition is not, of course, sufficient to establish appealable error.
Moreover, as counsel for the mother pointed out, during the hearing the following concession was made during the hearing:
“the fact that the mother didn’t get treatment … [is] not the issue here … that’s not the father’s case … The way the mother puts her case in her evidence is that she’s done everything to get [B] treated … but we’re not concerned about that. That still remains to be done. The father has never suggested that the mother never got treatment.”
I find no merit in this ground.

Ground 5

“5.That the Federal Magistrate erred in finding that the mother became aware of the child [B]’s health concerns only after the referral to [Dr R].”

The ground in fact does not express a finding that the Federal Magistrate made. What he actually found about the mother’s awareness of health concerns about B he expressed in paragraph 32 of his reasons, as follows:
“…As a result of taking the child to [Dr H], she was referred to [Dr R] who made some recommendations and it was, it seems, not until after that happened that the mother became aware of the father's concerns.” (emphasis added)
There is no merit in this ground of appeal.

Ground 6

“6.That the Federal Magistrate erred in finding that it was not the case that until the father acted unilaterally that then thereafter the child [B]’s condition had been attended to.”

This is a difficult ground to understand. To give it meaning counsel for the mother speculated that the word “not” had been omitted before “attend to”. Counsel for the father’s submissions do not identify or explain any problem with the ground’s meaning.
The ground is not the subject of separate written submissions by counsel for the father (who discusses grounds 4-6 together). However, it seems obvious enough that the complaint is that the Federal Magistrate should have found that the mother did not properly attend to B’s health before the father unilaterally took the child for medical assessment.
To some extent this argument has already been discussed.
The relevant findings of the Federal Magistrate are as follows:
“29.The picture that the father paints in his affidavit material is one of at worst for the mother positive neglect, but at best for her reckless indifference to [B]'s health concerns. His case was that either the mother did not appreciate that [B] was in need of assistance or that she deliberately chose to ignore the problem.
30.Having heard the evidence, however, I am satisfied that is not the case. The evidence demonstrates that the mother has in the past been alive to the difficulty. The father acted, unilaterally I might add, by having the child seen by [Dr H] and thereafter by a specialist to whom the child was referred by [Dr H]. But the evidence does not suggest that the child's condition has not been properly attended to at all times.”

There was no challenge to earlier findings by the Federal Magistrate that there was evidence that the mother had taken [B] to medical practitioners in relation to her growth problems as far back as 2000.
In my opinion the findings of the learned Magistrate were well open to him. Accordingly, there is no merit in this ground.

Ground 7

“7.The Federal Magistrate erred in failing to accept the evidence of [Dr H] on the basis of a finding that he was an advocate for the father.”

This also is a difficult ground to address and those difficulties were not removed by any submissions in support of the ground.
I am not persuaded by anything in submissions in support of this ground or upon a reading of the Federal Magistrate’s reasons that the broad assertion in the ground that Jarrett FM “failed to accept the evidence of [Dr H]” is correct. For example, the Federal Magistrate clearly accepted that Dr H had seen the child and had referred the child to Dr R.
Dr H also recorded some observations of the child and opinions about her. Counsel for the father did not argue that this evidence conflicted with other evidence and that those issues needed to be resolved and should have been resolved by the acceptance of Dr H’s evidence.
The ground may, but does not necessarily, attack the finding that Dr H was an advocate for the father.
What the learned Magistrate said with regard to Dr H, at least in so far as he saw Dr H as an advocate for the father, was:
“32.[Dr H] is, I am satisfied, an advocate for the father's cause. Although he is a professional witness he was not called in that capacity. He plainly evidenced a capacity to advocate on behalf of the father and the father's concerns. See, for example, the letter written by [Dr H] to [ET] of 10 February, 2004. As a result of taking the child to [Dr H], she was referred to [Dr R] who made some recommendations and it was, it seems, not until after that happened that the mother became aware of the father's concerns.”
In his written submissions counsel for the father wrote:
“59.Firstly, His Honour did not specify the basis on which [Dr H] was not called in the capacity as a professional witness. Secondly, if [Dr H] was found by His Honour to be a professional witness [Dr H]’s uncontradicted concerns as to [B]’s stature were central to his finding as to her best interests.”
Counsel for the father did not argue that there was no basis upon which the Federal Magistrate could find that Dr H was an advocate for the father. In the paragraph quoted Jarrett FM specially referred to one evidentiary basis. In my view the finding that Dr H was the father’s advocate supports the observation that though a professional witness, Dr H was not called in that capacity.
The second sentence of counsel for the father’s submission quoted above, puts a provisional proposition. As the provision was not accepted by Jarrett FM, it may not be necessary to discuss the proposition further. However, in any event, I do not accept the bald proposition that Dr H’s “concerns as to [B]’s stature” were central to the question of the child’s best interests. A central question was the way in which each parent addressed whatever health issues arose in respect of B. Obviously it was in so far as Dr H offered an opinion on that central question that Jarrett FM found him to be an advocate for the father and to be offering opinions outside his professional capacity.
In my view there is no merit in this ground.

Ground 8

“8.The Federal magistrate erred in failing to find that the mother had not alienated or actively alienated the children from the father.”

The submissions in support of this ground do not support it. Instead, the arguments are directed to the proposition that the Federal Magistrate should not have enquired as to whether there had been a change since the decision of May J in the mother’s conduct with regard to alienation, but rather have examined that conduct itself.
In relation to the claim that the mother was alienating the children from the father, the learned Magistrate said:
“35.Similarly, and although it is not really a matter that arises strictly as a matter of a change of circumstances because this was a matter argued before May J in 2002, I am satisfied that the mother is not actively attempting to alienate the children from the father. If I am wrong about that, she is doing so unsuccessfully. To use the words of her counsel, if she is attempting to alienate the children then she has been an "abject failure".
36.The observations of the court counsellor [Mr O], make it plain that these children have retained a good relationship with their father. He accepted as much in cross-examination. There is no reason it seems to me to be concerned with the nature or extent of the relationship between the children and their father at this stage. The evidence in [Mr O]'s report, accepted by the father, is that the children have been able to maintain a good and positive relationship with him.”
For the reasons earlier given I have rejected the argument that the Federal Magistrate should not have approached the hearing as an enquiry about whether circumstances had changed.
Accordingly, he appropriately addressed the allegations about the mother’s conduct.
As to support for his findings with regard to that conduct, the content of paragraphs 35 and 36 quoted at least inferentially provide it.
There is no merit in this ground.

Ground 9

“9.The Federal Magistrate erred in finding that the mother had a willingness to improve communication with the father.”

In his written submissions and oral argument, counsel for the father referred to various parts of the evidence that demonstrated a lack of communication between the parties and the mother’s resistance, at least in times past, to communication with the father. Nonetheless, in re-examination the following exchange occurred:
“[COUNSEL FOR THE MOTHER]: You were asked about the prospects of your discussing matters with [the father]. Is that something that you wish to undertake or not?---Yes, yes, it is.
Do you have any apprehensions about discussions with [the father] at this stage?---Yes, I – because we haven’t been in discussions for a while it will be a bit difficult, so - - -
What particular difficulties, if any, do you anticipate you might encounter in attempting to discuss things with [the father]?---Just maybe that we don’t agree on the course of treatment.”
Later, Jarrett FM asked the mother some questions giving rise to the following:
“So when do you propose to talk to the father or discuss with the father those treatment options?---Well after [B] sees [Dr T] for the – the final time in September - - -
And how do you - - -? --- cause we won’t know until then whether – whether it is actually proceeding or not.
And how do you propose to do that?---Again, I – I guess I’d have to write to him.
That’s it, is it, write to him?---I guess so, yes, your Honour.
Cause [your counsel] asked you some questions in re-examination about discussing things with the father and it was – certainly the impression I got was that the questions were on the basis that there was going to be some oral discussion about these tings and whether there was any particular difficulty from your point of view about doing that and your answer was that “Only that we haven’t spoken to each other for a very long time. No, I don’t think so”?---Mm.
Do you propose to have any oral discussions with him about it?---I – I’m just nervous to, your Honour, because I – I haven’t had any discussions with him for such a long time, but - - -
Yes, And why would that be?---Because whenever we’ve had discussions there – it ends up in an argument or I’m being accused of doing something. So I’m, sort of, a bit reluctant to be involved in a – an oral discussion.”
In my view, from the evidence set out, it was open to the Federal Magistrate to make the following finding:
“41.The mother in the course of her evidence, however, indicated that notwithstanding her failure to or her inability to communicate with the father over the last six years, she was willing to attempt to improve the communication between them so that there might be proper discussion about issues concerning the welfare of the children. I accept her evidence in that regard.”
Accordingly, I find no merit in this ground.
Even if I am wrong in relation to this conclusion, I consider that the finding in relation to the mother’s willingness to communicate in the future did not affect the trial Judge’s ultimate conclusion, which in fact is expressed earlier in paragraph 39. Paragraphs 40 and 41 do not seem part of the process which led the Federal Magistrate to conclusion about the absence of significant or substantial change sufficient to warrant the revisiting of the welfare of the children. Rather the content of those subsequent paragraphs seems in the nature of alerting the wife to the Federal Magistrate’s concern that she attempt to improve communication between her and the father.

Conclusion

It follows from the absence of merit in any of the grounds of appeal that the appeal must be dismissed.

I certify that the preceding 64 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate:

Date: 17 October 2006

[2006] FamCA 1047

17 October 2006

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