ELMI & MUNRO

[2018] FCCA 3114

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELMI & MUNRO

[2018] FCCA 3114

Catchwords:

FAMILY LAW – Parenting – five day trial in 2012 before Family Court resulting in complex orders – father applying for alteration to those orders – significant intervening litigation – father wanting change of orders – no evidence that the desired new orders were based on materially changed circumstances – review of authorities on finality of litigation.

RES JUDICATA ESTOPPEL – Circumstances in which doctrine arises – evidence relevant to doctrine.

SO CALLED RULE IN RICE AND ASPLUND – When relevant – when arises – evidence required to invoke – whether the “rule” displaces 400 years of common law and equity learning on res judicata estoppel – discussion.

Legislation:

Family Law Act 1975, s.60CC(3)

Cases cited:

Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68

Blair v Curran (1939) 62 CLR 464

Burrell v R (2008) 238 CLR 218

Commonwealth v Spencer (2010) 241 CLR 118

Cox v Dublin City Distillery Co Ltd (No 3) [1917] 1 IR 203

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

DJL v Central Authority (2000) 201 CLR 226

Duffield v Scott (1789) 3 Term Rep 374

Ferrer v Arden (1599) 6 Co Rep 7

Green v Weatherill [1929] 2 Ch 213

Hannaford v Hunn (1825) 2 C & P 148

Holland v Clark (1842) 1 Y & CCh Cas 151

Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290

In the Marriage of Rice v Asplund (1978) FLC 90-725

Irish Land Commission v Ryan [1900] 2 IR 565

Jackson v Goldsmith (1950) 81 CLR 446

Lindon v Commonwealth of Australia (No 2) (1996) 70 ALJR 541

Lockyer v Ferryman (1877) 2 App Cas 519

New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1

Outram v Morewood (1803) 3 East 346

R v Hutchings (1881) 6 QBD 300

Re May (1885) 28 Ch D 516

Re Surfleet’s Estate; Rawlings v Smith (1911) 105 LT 582

The Ampthill Peerage [1976] All ER 411

Other materials:

Handley, K R, Spencer Bower and Handley, res judicata (LexisNexis, 4^th ed, 2009)

Applicant:

MR ELMI

Respondent:

MS MUNRO

File Number:

MLC 9529 of 2018

Judgment of:

His Honour Judge Wilson

Hearing date:

4 October 2018

Date of Last Submission:

4 October 2018

Delivered at:

Melbourne

Delivered on:

1 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr G Holmes

Solicitors for the Applicant:

Schetzer Constantinou

Counsel for the Respondent:

Mr R Hoult

Solicitors for the Respondent:

Howard Bear Legal Consulting Services

I ORDER the application filed on 17 August 2018 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Elmi & Munro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

1. FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT Melbourne

MLC 9529 of 2018

MR ELMI

Applicant

And

MS MUNRO

Respondent

REASONS FOR JUDGMENT

Introduction

1.      Following a five-day trial conducted in February 2012, on 9 March 2012 the Honourable Justice Cronin of the Family Court of Australia handed down reasons for judgment in relation to parenting of the parties’ son born … 2007. 

2.      Pursuant to the orders of Justice Cronin, the mother had sole parental responsibility in respect of the child.  Pursuant to paragraph 6 of those orders, the child was to live with the father in accordance with a relatively straightforward regime that was centred around the child’s school year and holiday time. 

3.      Prior to the orders made in the Family Court, the mother and father had been embroiled in litigation in the Magistrates’ Court culminating in an intervention order.  Subsequent to the orders made by Justice Cronin, the father applied for an intervention order in December 2014 leading to an order being made against the mother on 2 June 2015.  After that, the mother entered into a six-month diversion in respect of various charges. The diversion period ended in August 2017.

4.      On 20 June 2016 Victoria Police interviewed the father as result of a complaint made by the mother against the father.  In August 2017 police were again involved.

5.      The father has complained that the mother contravened the orders made by Justice Cronin.

6.      In short, despite the lengthy trial that occurred before the Family Court leading to the orders made by Justice Cronin in 2012, litigation has abounded between the mother and the father ever since.  It appears to have no prospect of abating.  The father has remarried and now lives with his new wife and her child.  When the child the subject of this proceeding stays with his father he resides with the father, the father's new wife (that is to say, the child’s stepmother) and his stepbrother.

7.      In bringing this application before me, the father pointed out that the orders made in 2012 preceded the child’s attendance at school and that the child is, to use the father’s words, “looking to engage (the father) on matters relating to becoming a teenager and manhood (sic)”.  The father swore that the child has expressed a desire to spend more time with the father and that the father would like to spend more time with his son.

8.      By application in a case filed 17 August 2018, the father sought the discharge of all extant parenting orders and in substitution therefore a comprehensive list of 25 orders to replace those orders made by Cronin J.  No useful purpose is served by setting out the paragraphs verbatim.  However, suffice it to say that the import of the orders sought reflected an intention by the father to fundamentally recast the orders made by Cronin J following the long trial mentioned above. 

The way this application unfolded

9.      This case came on for hearing during a busy duty list.  The father was not represented.  The mother was represented by Mr Rohan Hoult of counsel.  Soon after appearances were announced Mr Hoult informed me that his client’s position was to rely upon what he described as the rule in Rice v Asplund to contend that leave should not be granted for the father to bring the application recorded in the initiating application filed 17 August 2018.  After discussing with the father that his application required my grant of leave and that the mother opposed it, I told the father that his application was complicated, it involved thorny legal principles and that he should obtain legal advice before bringing it because the consequences of his failing in the application had far reaching consequences for him.  I adjourned the hearing for a few days.  On the return, Mr Gerard Holmes of counsel appeared for the father.

10.    In essence, Mr Holmes has said that the circumstances in this case were sufficient to invoke the rule in Rice v Asplund and that orders should be made as urged by the father.  Mr Hoult relied on written submissions in which he relied on different aspects of the rule in Rice v Asplund to contended that the circumstances in this case had been explored at length before Justice Cronin, there had been no material change in those circumstances so as to warrant the unravelling of the orders previously made and that the application should otherwise be dismissed.

11. On behalf of the father Mr Holmes of counsel submitted that the father should have leave to bring the proceeding and that the case should be sent for a child inclusive conference pursuant to s 11F of the Family Law Act with a view to obtaining updated material about the child.  Mr Holmes submitted that I should not rule on the Rice v Asplund point until more up-to-date information was known.  Mr Hoult contended that the very purpose of the rule in Rice v Asplund was to foreclose on the very application the father made in this proceeding.  Mr Hoult urged me to nip this litigation in the bud, largely on the basis that the father had exhaustively and comprehensively canvassed the very same points as he wished to make before me before the Honourable Justice Cronin.

12.    With those submissions in mind, I reserved my decision to briefly consider the full ramifications of the so-called rule in Rice v Asplund.

Finality in litigation

13.    Family law litigation in Australia stands outside of the highly developed Anglo Australian jurisprudence that addresses the doctrine known as res judicata estoppel.  In its classic formulation, according to the learned authors of Spencer Bower and Handley, Res Judicata, the doctrine is expressed in the following terms –

A res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment. 

14.    The doctrine is of undeniable antiquity.  The decision in Duffield v Scott was an early illustration.  It was followed by Outram v Morewood; Hannaford v Hunn, Holland v Clark, R v Hutchings, Re May, Re Surfleet’s Estate, Rawlings v Smith, New Brunswick Railway Co v British and French Trust Corporation Ltd.

15.    Two important policies underpinned the doctrine of res judicata estoppel.  The first was the interests of the community in the termination of disputes and the finality and conclusiveness of judicial decisions.  The second was the interest of an individual in being protected from repeated suits and prosecutions for the same cause.  The concept was first uttered in Ferrer v Arden.  Lord Blackburn took a similar view in Lockyer v Ferryman.  The same was said in Green v Weatherill.  In Ireland the proposition has stood since the turn of the century in Irish Land Commission v Ryan and in Cox v Dublin City Distillery Co Ltd (No 3).  Contemporary jurisprudence attribute the doctrine, expressed in the following terms, to Lord Wilberforce in The Ampthill Peerage –

English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes.  The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods.  Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry.  It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide.  The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality.  For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended.  But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases where the facts justifying them can be strictly proved.

16.    The doctrine in Australia has been the subject of treatment in the High Court of Australia.  In Blair v Curran, Dixon J held that where the cause of action succeeded it merged in the judgment so that the cause of action is extinguished.  Equally, if the cause of action failed on the merits, an estoppel barred any subsequent action on the same cause.  Other decisions of the High Court have addressed the doctrine of res judicata.  Those authorities include Hoysted v Federal Commissioner of Taxation, Jackson v Goldsmith, Administration of the Territory of PapuaNew Guinea v Daera Guba, DJL v Central Authority, D’Orta-Ekenaike v Victoria Legal Aid and Burrell v R.  In Burrell, the plurality made key observations about the principle of finality. Specifically, the plurality said the following (at [16]) –

It is that the principle of finality serves not only to protect the parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes.  In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time.  Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.

17.    Deeply entrenched jurisprudential concepts concerning the finality of litigation enjoy statutory abrogation under the Family Law Act.  Yet two seemingly contradictory precepts emerge in family law litigation.  In the first is the supervisory jurisdiction of courts exercising power under the Family Law Act to keep uppermost at all times the best interests of the child.  In discharging that obligation the court must fashion orders that best suit the evolving circumstances to which the child is exposed.  The attainment of that end may require orders previously made to be subsequently modified where the best interests of the child are in a fluid state.  Against that imperative lies the obvious sensibility that once parties are heard after a searching trial and orders are made, the parties require certainty by adhering to those orders and that the alteration of those orders creates confusion in the mind of the child, a matter wholly antithetical to the best interests of the child. 

18.    In an endeavour to wrestle with those seemingly contradictory imperatives, judges exercising jurisdiction in family law cases over the decades have formulated an approach, in my view erroneously described as an immutable rule, to the best resolution of this conundrum.  Colloquially, the concept has been consistently described as the rule in Rice v Asplund, the concept emanating from a decision of the Full Court of the Family Court bearing that name. At once let me point out that the concept is just that – a concept.  The rule has no force of statutory imprimatur.  It is a rule of practice.  By its terms it demands flexibility of application.

19.    Yet prior to that decision, matrimonial cases stood in a discrete category of cases for the purposes of the doctrine of res judicata.  English jurisprudence that spoke of the estoppel binding the parties but not the court (Denning LJ in Thompson) was not apposite.  For that matter, since 1979 the proposition espoused in Rice v Asplund has applied to Australian family law jurisprudence.

20.    Whatever may be said about the doctrine of res judicata estoppel in its application in litigation in common law courts, it is a fair distillation of the law on point that in family law litigation in Australia, the doctrine has been entirely sidestepped.  The lead case on the point concerned the reversal of an earlier order.  In Rice v Asplund, judgment was given by the Family Court of Australia on 22 November 1978.  By that date the Family Law Act had been in operation for only a short time.  The way the Full Court (Evatt CJ, Pawley SJ and Fogarty J) came to address the issue arose from relatively uncomplicated facts.  It is useful to set them out.  In October 1975 the Supreme Court of New South Wales made an order in favour of the father "granting custody".  Those were the words used in the reported decision, although in contemporary parlance the word “custody” has been expunged from family law legislation replacing it with the concept of a parent “spending time” with the child.  Almost two years later, in August 1977 and following a hearing concerning custody of the child, the Family Court of Australia reversed the orders previously made by the Supreme Court of New South Wales so that custody of the child was given to the mother.  The father appealed to the Full Court of the Family Court of Australia.

21.    The ratio decidendi of the Full Court’s decision is best expressed on four bases.  They are –

a)        the court should not lightly entertain an application to reverse an earlier custody order because the court would need to be satisfied by the applicant that there was some change in circumstance which would justify such a serious step, some new factor arising or at any rate some factor which was not disclosed at the previous hearing which would have been material;

b)        that principle applies whether the original order was made by consent or after a contested hearing;

c)        once a court is satisfied that there is a new factor or a change in circumstance then the issue of custody should be determined in the ordinary way, applying the principles enunciated in s 64; and

d)        while the court should give weight to any earlier decision and in particular to any finding of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child.

22.    At once it will be apparent that the reasoning of that case –

a)        was delivered ex tempore without time for detailed consideration;

b)        no authorities concerning the doctrine of res judicata estoppel were mentioned;

c)        only four authorities were cited to support the far-reaching holdings of the Full Court’s decision;

d)        no legislative basis was cited to support the far reaching holdings of the Full Court’s decision; and

e)        no explanation was given about why the very detailed, learned, forensically maintainable body of jurisprudence concerning res judicata estoppel, dating back to 1500, was inapplicable in the case.

23.    It may be, although the Full Court in Rice v Asplund did not say as much, that the rationale underpinning court’s ratio decidendi lay in the need for flexibility so as to meet the organic and constantly evolving circumstances in a child’s development.  It seems to me that no other explanation could rationally countenance a Full Court authorising a single judge to not follow a previous decision by a different judge in the same case on the same subject matter.  Otherwise, the Full Court would be authorising the wholesale abandonment of the doctrine of precedent, of stare decisis and of the concept of certainty central to the rule of law. 

24.    That could not possibly have been the intention of the Full Court.  For that matter specific enabling legislative authority to do so was required, none of which appeared.

25.    Proceeding on the premise that the ratio decidendi of Rice v Asplund applies only in the extremely limited circumstances where a change of parenting orders is involved, as was the case in this application before me, it is possible to formulate certain statements of principle derived from it.

26.    First, despite parenting orders having been previously made in relation to the same child and the same parents, it is competent for a judge (even a judge of a court lower in the appellate hierarchy than the court originally making the parenting order) to make parenting orders that qualify and even reverse parenting orders previously made.

27.    Any such subsequent parenting order should not be made lightly, especially where the earlier parenting orders were made after a searching trial at which a detailed forensic examination was made of the best interests of the child.

28.    It is competent for a judge to make a subsequent parenting order even if the earlier parenting order was made by consent, although the evidence to be adduced by the party seeking the alteration of the consent parenting orders will need to be highly persuasive. 

29.    The making of orders altering previous parenting orders is a serious step.

30.    Where an applicant applies for orders altering earlier parenting orders, the applicant must show on proper material the existence of material circumstances that have changed since the making of the earlier parenting orders.

31.    It is not possible to catalogue exhaustively the changed material circumstances by which it will be appropriate to alter previous parenting orders.  However, the mere fact of there being some change in circumstances, without more, will be insufficient in my view.  The changed circumstances must be material.  In Rice v Asplund the Full Court mentioned some new factor not disclosed at the earlier hearing.  There will be others.  The materiality of the changed circumstances warranting the making of orders altering the previous parenting orders will be a matter for individual assessment on a case-by-case basis.

32.    No prescription should be stipulated as to whether orders altering previous parenting orders should be made at an interlocutory stage or only after trial.

33.    Before turning to the facts of this case let me address a submission made by Mr G Holmes of counsel for the father.  Mr Holmes argued that the application advanced by Mr Hoult of counsel was, in effect, an application for the summary dismissal of the father's motion for orders altering the parenting orders propounded by Cronin J.  Mr Holmes submitted that I should resist acceding to the mother's contentions because, so he said, authority of the High Court in Lindon v Commonwealth of Australia (No 2) held that it is a serious matter to deprive a person of access to courts of law and such an order is usually reserved for cases lacking a reasonable cause of action.  To that may I add other authority to the effect that a summary dismissal of the proceeding is a serious step and as such an order not to be lightly made.  The High Court in Commonwealth v Spencer and the Full Court of the Federal Court of Australia in AMF15 v Minister for Immigration and Border Protection said as much.

34.    To my mind it is erroneous to characterise the mother’s application as a summary dismissal application.  To so characterise her position in this case is to invert the nature of the father's application.  He was the applicant for orders altering the parenting orders made by Cronin J.  He was required to make out his case according to substantive principles applicable to altering parenting orders.  The mother opposed the father's application.  She did not formally apply to summarily dismiss the father's litigation.  She simply resisted the application he made, as she was entitled to do.  Of course, if the father's application failed, the effect of such a failure would be that the orders made by Cronin J stand.  But that would not prevent the father from applying again, on other different material, seeking an alteration to the parenting orders so long as he could demonstrate that the making of those orders was in the child's best interest. 

35.    Coming now to the facts of this case, I was not persuaded that the orders sought by the father should be made.  I say that for several reasons.

36. First, the trial of this proceeding and its examination of the child’s best interest was extensive, exhaustive and comprehensive. After that lengthy trial, the learned trial judge delivered exhaustive, extensive and comprehensive reasons. His Honour considered the most appropriate order for the child. In making those orders, his Honour assessed the best interests of the child for the purposes of s 60CC(3) of the Family Law Act.  If I made say so respectfully, his Honour’s consideration of the issues was legally impeccable, considerate and thoughtful in all respects.

37.    The father filed voluminous affidavit material in support of his application before me.  When I asked the father to distil his affidavit material into propositions, he told me that his relationship with his son was improving and that an enlargement of the father's time with his son would further enhance the relationship.  His evidence was given against a backdrop that the father has remarried and his current wife’s son lives with the father and his current wife seven nights per fortnight.  The father spoke in his affidavit of his son's wish to spend more time with the father.  It seemed to me that the father was motivated to bring this application by a desire to unify the four persons relevant to the father, namely the father, his new wife, her son and the father's own son.  While it may be said that the father's 2017 marriage to his current wife took place subsequent to the trial before Cronin J in 2012, and therefore that fact represented “a change of circumstance" for the purposes of the rule in Rice v Asplund, the mere fact of there being that change of circumstance was not determinative of this application.  Further, while it was laudable that the father wanted to unify his new family by enhancing his time with his son, that expressed desire only told of part of the criteria relevant to an assessment of the best interests of the child.  Further, a close examination of the reasons for judgment of Cronin J revealed the following –

a)        the passage of paragraph 15 about his Honour’s concerns in relation of the father where Cronin J said as follows –

This matter came before me as a first day hearing in September 2011 at which time, counsel for the father said that the case was about the father’s belief that the mother had maliciously hurt [child] for the purposes of gaining some advantage. I queried at the time what evidence supported such an allegation and was told that it would unfold in cross-examination. Far from that occurring, those allegations shone a gloomy spotlight on the father. No-one could have been under any misapprehension about what the case was about when it commenced and that the father’s allegations were serious;

b)        the passage in paragraph 34 about his Honour’s concerns in relation to the father and the father’s extended family –

In so far as [child] is concerned, I am satisfied that there is no unacceptable risk of that type in the care of his mother but I am not entirely comfortable about the father and his extended family;

c)        the passage of paragraph 184 about his Honour’s attempts to avoid further litigation where his Honour said –

Notwithstanding [child’s] age, I think it is preferable to make final orders to try and avoid further proceedings in the future.  The parties endeavoured to do that in 2010 and the orders have been a failure.  For that reason, I propose to make orders which are unlikely to alter unless the parties come to a reasonable compromise about their terms of communication and their respect for each other.

38.    This application is the very litigation his Honour attempted to stamp out.

39.    The point has been reached in this litigation for the warring between the parents to end.  The parties had an exhaustive search before Cronin J about issues relevant to the best interests of the child.  The father must accept the umpire’s decision.

40.    I refuse this application in a case filed 17 August 2018 and I otherwise dismiss this proceeding.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:   1 November 2018