Elmi & Munro
[2019] FamCAFC 138
•16 August 2019
FAMILY COURT OF AUSTRALIA
| ELMI & MUNRO | [2019] FamCAFC 138 |
| FAMILY LAW – APPEAL – PARENTING – Where the trial judge considered that Rice and Asplund (1979) FLC 90-725 had not been correctly decided – Where there is no scope for doubting the correctness of Rice and Asplund (1979) FLC 90-725 – Where there is an obligation on a judge of the Federal Circuit Court of Australia or the Family Court of Australia to follow and apply decisions of the Full Court of the Family Court of Australia – Where the trial judge wrongly relied on principles of res judicata and failed to follow and apply the principles in Rice and Asplund (1979) FLC 90-725 – The concept of res judicata or issue estoppel does not apply to parenting cases – Appeal allowed and matter remitted – Costs certificates granted for costs of the appeal and rehearing. |
| Family Law Act 1975 (Cth) Part VII, ss 60CA, 65D(2) Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Bower, George Spencer and Kenneth R Handley, Spencer Bower and Handley: Res Judicata (LexisNexis Butterworths, 4th edition, 2009) |
| APPELLANT: | Mr Elmi |
| RESPONDENT: | Ms Munro |
| FILE NUMBER: | MLC | 9529 | of | 2018 |
| APPEAL NUMBER: | SOA | 87 | of | 2018 |
| DATE DELIVERED: | 16 August 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Aldridge & Kent JJ |
| HEARING DATE: | 5 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3114 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bartfeld QC with Mr Holmes |
| SOLICITOR FOR THE APPELLANT: | Schetzer Constantinou Lawyers |
| THE RESPONDENT: | In Person |
Orders
The appeal be allowed and the order made on 1 November 2018 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing.
There be no order as to costs.
The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of costs incurred by them in relation to the new trial ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Elmi & Munro has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 87 of 2018
File Number: MLC 9529 of 2018
| Mr Elmi |
Appellant
And
| Ms Munro |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9 March 2012, after a contested hearing, Cronin J made a suite of parenting orders in relation to the parties’ child, S (“the child”), who was then aged four. In short, the child was to live with Ms Munro (“the mother”), who was to have sole parental responsibility for him. He was to spend four nights a fortnight and approximately one half of the school holidays with Mr Elmi (“the father”).
On 17 August 2018, the father commenced proceedings seeking to vary those orders by filing an Initiating Application in the Federal Circuit Court of Australia.
On 1 November 2018, a judge of that Court summarily dismissed the proceedings, saying:
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.
The Appeal
A Notice of Appeal was filed on 26 November 2018.
The mother did not take any steps to engage with the appeal until she appeared at the hearing. At the hearing, she informed us that she did not oppose the appeal and that it was a matter for the Court.
These reasons explain why the mother’s concession was correctly made and the appeal will be allowed.
Before turning to the grounds of appeal, as set out in the Further Amended Notice of Appeal filed on 16 April 2019, it is useful to place those grounds within the appropriate factual context and to refer briefly to the trial judge’s reasons.
The parties had a very short relationship. The child was born in November 2007. Parenting issues arose shortly after they separated in June 2008. Consent orders were entered into on 23 February 2010 but the parties could not agree on their interpretation. The dispute widened and family violence orders were sought from the Magistrate’s Court of Victoria.
This led to the hearing before Cronin J which took place over five days in February 2012.
Cronin J was concerned about the child’s young age and whether, in the light of that, interim orders should be made (Munro & Elmi [2012] FamCA 122). The conclusion was:
184.Notwithstanding [the 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.
The father’s Initiating Application filed on 17 August 2018, sought an order for equal shared parental responsibility and orders that would put in place a regime of equal time, including a week about arrangement during school terms.
In his supporting affidavit filed on 17 August 2018, the father asserted that the present circumstances were different to those that existed in 2012. In particular:
·the child was now 11 years old;
·the child wished to spend more time with the father;
·the child had formed a relationship with the father’s new partner and her child, which it would be in his interests to foster; and
·there had been continuing difficulties as to the implementation of the orders made by Cronin J in 2012, the child’s schooling and continuing proceedings for intervention orders and asserted breaches of those orders.
The mother did not accept this to be the position. She filed a Response on 24 September 2018, which sought the dismissal of the Initiating Application filed on 17 August 2018. It also sought an order for the preparation of a Family Report and proposed orders which would see the time the child was to spend with the father reduced to two nights per fortnight.
During the hearing before the trial judge, the mother’s counsel withdrew the Response filed on 24 September 2018 and, although no orders were made in relation to it, we were informed by both parties that they and, apparently, the Court, regarded it as spent and no longer before the Court. There was, therefore, no basis for contending that a reconsideration of the orders made by Cronin J in 2012 was warranted because both parties had agreed that they were no longer working and that new orders were required.
The father’s Initiating Application came before the trial judge on 1 October 2018 in a duty list where the father appeared for himself. After some discussions, it was adjourned to 4 October 2018 when both parties were legally represented.
On that occasion, the mother sought the summary dismissal of the proceedings on the basis set out in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”). She submitted that there had “been no material change of circumstances since the original orders were made and that it is not in the best interests of the child for there to be a further set of legal proceedings” (The mother’s written submissions dated 1 October 2018, paragraph 6).
The hearing proceeded on that issue. At no stage during the hearing did the trial judge raise the issue as to whether or not Rice and Asplund had been correctly decided.
However, in the reasons for judgment, his Honour considered that it had not because:
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 and 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.
Nonetheless, the trial judge proceeded to identify the principles to be applied in a case of the kind before him in the following terms:
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.
(As per the original)
These principles were applied in the following manner:
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 [child] was improving and that an enlargement of the father’s time with his [child] would further enhance the relationship. His evidence was given against a backdrop that the father has remarried and his current wife’s [child] lives with the father and his current wife seven nights per fortnight. The father spoke in his affidavit of his [child’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 [child] and the father’s own [child]. 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 and 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 [child], 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 the 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.
(As per the original)
The decision of the trial judge to attempt a critique of, rather than an application of, Rice and Asplund and the principles discussed in that seminal authority, as elaborated upon by subsequent decisions of the Full Court over the decades since it was decided, was an impermissible exercise of judicial authority. It appears that the notion that he had discovered historic error distracted the trial judge from analysing the proper application of long established principles to the relevant facts concerning the central question falling for determination.
The obligation on a judge of the Federal Circuit Court of Australia or the Family Court of Australia is to follow and apply decisions of the Full Court of the Family Court of Australia. It is not for trial judges to question or cavil with them. Stephen J explained this in Viro v The Queen (1978) 141 CLR 88 at 129 as follows:
The first duty of a court is to administer justice according to law. However in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as that precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective: if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal …
Thus, no occasion arose for the reconsideration of Rice and Asplund. Both counsel proceeded on the assumption that it applied. The trial judge, erroneously, in our opinion, did not raise with counsel the possible disinclination to accept the decision as correct and binding. Not only did his Honour lose the benefit of receiving submissions on the point, he denied the parties procedural fairness.
There is no scope for doubting the correctness of Rice and Asplund in any event. It has been explained and applied in many Full Court decisions, including Langham & Langham (1981) FLC 91-014; Newling and Newling (1987) FLC 91-856 (“Newling”); Bennett and Bennett (1991) FLC 92-191; Miller & Harrington (2008) FLC 93-383 (“Miller & Harrington”); SPS and PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Langmeil & Grange [2013] FamCAFC 31; Poisat & Poisat (2014) FLC 93-597 (“Poisat”); Carriel & Lendrum (2015) FLC 93-640; Tindall & Saldo (2016) FLC 93-727.
In Poisat, the Full Court (Strickland, Murphy & Austin JJ) said at [13] that the principle “is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently”.
One of the trial judge’s criticisms of Rice and Asplund was that the doctrine of res judicata had been “entirely sidestepped” (at [20]).
The concept of res judicata or issue estoppel does not apply to parenting cases.
In Newling, Nygh J, with the concurrence of Barblett and Fogarty JJ, said at 76,467:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. There must, in other words, be an end to litigation.
This was made clear in Miller & Harrington, where the Full Court (Warnick, Boland & Murphy JJ) said:
100.The language of “issue estoppel” or, “res judicata” is not appropriate because the judicial determination of what is in a child’s best interests, although bringing the then proceedings to an end, does not dispose “once and for all” of that issue.
(Citations omitted)
The trial judge commenced his discussion of the principles of res judicata and his survey of authority by quoting the well-known definition set out in George Spencer Bower and Kenneth R Handley, Spencer Bower and Handley: Res Judicata (LexisNexis Butterworths, 4th edition, 2009) at page 1. His Honour did not refer to paragraph 15.19 of the same text where the authors opine that:
Issue estoppels are not binding in proceedings for the care or custody of children because the court’s overriding duty is to have regard to the welfare of the child, and there is no estoppel in a changing situation.
In Australia, contrary to the opinion of the trial judge, the position is made perfectly plain by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Firstly, s 60CA of the Act requires that a court, in deciding whether to make a particular parenting order in relation to a child, must regard the best interests of the child as the paramount consideration.
It is obvious that what particular order is in the best interests of a child may change as time passes and as circumstances change. Indeed, the decision in Rice and Asplund accepts this but places a brake on repeated applications by insisting that the change in circumstances must be such as to warrant a reconsideration of the orders.
Secondly, again, contrary to the opinion of the trial judge, the Act specifically authorises reconsideration of parenting orders. Section 65D provides:
65DCourt’s power to make parenting order
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting orders as it thinks proper.
(2)Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
This section is in similar terms to s 64(7) of the Act which applied in 1978 and which was expressly referred to by the Court in Rice and Asplund. It stated:
A court may discharge or vary an order under this section, or may suspend any part of the order and may revive the operation of any part so suspended.
Further, as the Full Court pointed out in Poisat, the principle has received express approval by the High Court of Australia and by the legislature. Their Honours said:
12.Such an interpretation derives force from the treatment of the principle in the unreported special leave application in Lowe v Lowe (unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990). Tellingly, there is reference to it by the legislature (albeit as a “principle”) in Notes to both s 44 of Schedule 1 to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and s 47(2) of Schedule 1 to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). The Explanatory Memoranda to both pieces of legislation, too, refer to “the principle in Rice and Asplund” limiting:
89.… the court’s capacity to rehear matters in two kinds of cases: those where there is a change in the circumstances of the parties where some new factor has arisen which would justify a serious step; and those where there is some factor which was not disclosed at a previous hearing that would have been material.
90.It is not generally in the best interests of the child to have repeated applications concerning them before the courts …
91.The note following sub-item 47(2) directs the reader to the principle in Rice and Asplund. This note is to assist readers, particularly self-represented litigants, to understand how sub‑items 47(2) links to the common law.
(Family Law Amendment (Family Violence and Other Measures) Bill 2011 (Cth), Explanatory Memorandum. See, also, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth), Supplementary Explanatory Memorandum, at [10]-[13]).
We now turn to the determination of the proceedings by his Honour. We do not accept that the trial judge, in paragraphs [26]–[31], which we have already quoted above, fully encapsulated the principle to be applied.
The essence of the issue to be determined is whether there has been a material change in circumstances which indicate that it would be in the best interests of the child for there to be a reconsideration of the parenting orders. Perhaps, this is what the trial judge intended to say at [31].
However, the trial judge neither followed the conventional statement of principle quoted by us, nor his own reformulation as set out above.
It can be seen that the reasoning expressed in those paragraphs took the following path:
·the consideration of the relevant issues in 2012 by Cronin J was “extensive, exhaustive and comprehensive” and was “legally impeccable, considerate and thoughtful in all respects” (at [36]);
·the asserted changes in circumstances were outlined, much as we did earlier in [11] above;
·three passages from the reasons of Cronin J were extracted at [37]. They dealt with the accusations against the mother made by the father that showed him in a “gloomy spotlight”, there was no risk to the child in the care of the mother but the trial judge was not “entirely comfortable about the father” and there was a need to try to avoid further litigation; and
·the litigation has to end and the “father must accept the umpire’s decision” (at [39]).
This was an implicit application of concepts of res judicata rather than the application of the relevant principle.
This was not an appeal from the decision of Cronin J and the merits and thoroughness of his Honour’s reasons were beside the point. The relevance of these reasons was that they were a source of findings against which the present circumstances could be compared.
That exercise was not undertaken. There was no determination of whether there had been a material change of circumstances so that it was in the best interests of the child for his parenting arrangements to be reconsidered.
We are satisfied that, for the above reasons, Grounds 1 and 7 (which asserted that the trial judge wrongly relied on principles of res judicata and failed to follow and apply the principle in Rice and Asplund) have been made out.
It follows that we can deal with the remaining grounds briefly.
The Grounds of Appeal
The trial judge incorrectly applied legal principle by believing a grant of leave was required before proceedings could be commenced, not dealing adequately with the father’s proposals and not taking the father’s evidence at its highest (Ground 2)
Although, in the course of argument, the trial judge did assert that counsel for the mother was contending “that leave should not be granted” (at [9]), his Honour, correctly, did not approach the matter on the basis that leave was required.
Whilst the trial judge did not refer in any detail to the father’s proposals, it was the change in circumstances which was critical. There was no challenge to his Honour’s summary of them.
The father’s evidence as to those changes was set out without qualification and was, therefore, taken at its highest (as to the need for this, see Searson & Searson (2017) FLC 93-788 at [60]).
This ground does not succeed.
The trial judge failed to give sufficient reasons for his Honour’s decisions (Ground 3)
The reasoning process of his Honour, although we have found it to be erroneous, can be discerned. His Honour placed great weight on the importance of the reasons of Cronin J and the need for finality. It is true that there was no consideration of whether any change or whether any such change required reconsideration of the parenting orders, but that followed from the approach to the principles that were applied by his Honour. Thus, his Honour’s reasons were adequate, but, we repeat, erroneous.
Ground 3, therefore, is not established.
The trial judge overlooked the express reservation contained in the judgment of Cronin J in 2012 that further litigation would need to be undertaken if the father believed that the mother’s decisions in exercising her sole parental responsibility were not in the child’s best interest (Ground 4)
We do not consider that the remarks of Cronin J, as identified, in the circumstances of this case, carried any weight. His Honour was doing no more than explaining why he was making final orders and not interim orders, having regard to the child’s tender years. It was, therefore, not an error not to give that expression any weight.
The trial judge erroneously took the statement of Cronin J that his Honour’s preference to make final orders in order “to try and avoid further proceedings in the future” as being determinative of the application before the Court in the current proceedings (Ground 5)
We have already concluded that the trial judge erred in placing significant, if not determinative weight, upon the need for finality in litigation. It is apparent from the paragraphs of his Honour’s reasons that we have quoted above, that significant weight was given to this statement of Cronin J. This was a statement of Cronin J’s intention and it was not an attempt to bind a judge hearing further proceedings or to be a bar to them. In quoting this passage, the trial judge gave significant weight to it. It was, however, for the reasons given, irrelevant to the task before him.
Ground 5 has been made out.
The change in circumstances was such that at least a report by an expert was justified. The trial judge failed to consider that option, notwithstanding that this was the mother’s fall-back position (Ground 6)
Such a course was indeed an option, provided of course that the trial judge was satisfied that there was a sufficient change in circumstances that obtaining such a report was in the best interests of the child.
As the matter will have to be reheard, the better approach is that we do not express an opinion on this issue as the course to be followed will be entirely a matter for the judge hearing it (Kuru v New South Wales (2008) 236 CLR 1).
Conclusion
It follows that the appeal will be allowed and the order made by the trial judge set aside.
As we explained to the mother at the hearing of the appeal, we have no control over when this matter will be reheard or whether it should now be transferred to the Family Court of Australia.
Costs
Although the father foreshadowed seeking a costs order against the mother, it was not proceeded with having regard to the attitude of the mother towards the appeal. There will thus be no order as to costs.
In that case, as the trial judge made an error of law, it is appropriate to grant the father a costs certificate under the Federal Proceedings (Costs) Act1981 (Cth) for the appeal and to both parties for the rehearing.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Kent JJ) delivered on 16 August 2019.
Associate:
Date: 16 August 2019
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