F & C

[2004] FamCA 568

[2004] FamCA 568

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA95 of 2003
AT SYDNEY  File No CAF1155 of 2001

BETWEEN:

F
Appellant Wife
and -
C
Respondent Husband
CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  KAY, WARNICK & O'RYAN JJ
DATE OF HEARING:                 4 February 2004
DATE OF JUDGMENT:             23 June 2004

APPEARANCES:  Ms Tonkin of Counsel, appeared on behalf of the Appellant Wife

Ms Godtschalk of Counsel, appeared on behalf of the Respondent Husband.

Ms Cleary of Counsel, appeared on behalf of the Child Representative.

F and C
EA95 of 2003
CORAM:  Kay, Warnick & O’Ryan JJ
DATE OF HEARING:  4 February 2004
DATE OF JUDGMENT:                23 June 2004

Catchwords:           APPEAL – Residence – Mother seeking to re-litigate residence issues – Open to trial Judge to summarily dismiss application on basis that it failed to meet Rice v Asplund test – No substantial change in circumstances or evidence likely to produce different result

APPEAL – Variation of contact orders – Whether trial Judge’s refusal to adjourn matter to final hearing amounted to denial of natural justice – 11 day trial had taken place seven months earlier – no useful purpose served by continuing proceedings – potential cost to parties and detriment to child outweighed need to afford opportunity to mother to cross-examine father’s witnesses –  cross-examination unlikely to make any difference to outcome – No exercise of wrong principle or serious injustice – No basis for appellate interference – Extension of principles in Rice v Asplund to contact applications considered

1. This is the wife's appeal against orders made by Faulks J on 30 September 2003 summarily dismissing her application for a residence order and refusing an adjournment of her application seeking variation of existing contact orders.  By her appeal she seeks to have the matters remitted for rehearing.

Background

1. The proceedings concern the parties' daughter M born in May 1994.  The parties separated when she was a young baby.  Until February 2003 she lived with her mother.  On 18 February 2003 Faulks J delivered a reserved judgment after a trial that lasted 11 days.  His Honour ordered that M thereafter live with her father. 

1. The orders provided that the mother was to initially have supervised contact with the child.  The mother was to undergo psychiatric assessment and diagnoses and comply with any recommendations as to treatment made by the psychiatrist.  His Honour further ordered that:

"When those treating or assisting the mother are able to certify that it is appropriate to do so, the child's representative may make further application to this Court for additional orders about contact with either a different form of supervision or alternatively with no supervision."

1. His Honour also further ordered that:

"…nothing is to be taken to prevent the parents from agreeing if they are able to do so, about different forms of contact if they mutually consider that it is in [M's] interest that such contact should occur.  However, if such agreement is reached and the contact is to be on a continuing basis, each parent will notify the child's representative for the purposes of ensuring that the child's representative applies to have the orders presently made by me, varied by consent."

1. Amongst other orders that were made his Honour also ordered:

"12.     Notwithstanding that these orders represent the completion of the matter, at this point, the appointment of the child's representative is continued until further order or two years from the date of this order."

1. Following the delivery of the judgment in February 2003 M began to live with her father.  The mother had supervised contact with her. 

1. The parents reached agreement in May 2003 that the mother could commence having unsupervised contact and several such events occurred.  Finally, early in June 2003 an agreement was reached that the mother would have

• alternate weekend contact with M from after school Friday until 5.00pm Sunday and

• each other Wednesday from after school until 7.00pm 

• there would be fortnightly Wednesday telephone contact to be initiated by M and

• the mother would be able to attend M's school for a period of half an hour each week to assist in the classroom 

1. The parties continued to discuss issues relating to school holiday contact with the assistance of a counsellor.

1. On 28 July 2003 the mother filed an application in which she sought by way of final orders

"1.That the child [M] born […] May 1994 reside with applicant mother.

2.That the child have contact with the respondent father as agreed between the parties or determined by the Court."

1. She sought by way of interim orders a very detailed set of contact orders, the most significant of which was that she should have contact

"during school terms from after school each alternate Wednesday until the commencement of school on the following Monday".

1. The father's response to that application was to seek to have it dismissed, save that he indicated his agreement to an order permitting an exchange of e-mails, a requirement that each party was to be notified if the child was seriously ill, and a requirement that each party authorise medical or dental practitioners to provide information to the other party relating to the child's treatment.  He also indicated in his response that he had no objection to contact each alternate weekend from after school Friday until 5.00pm Sunday, each alternate Wednesday from after school until 7.00pm, and for half the school holidays.

1. The application and the response were initially made returnable on 25 August 2003.  On that day Faulks J directed that

"…lawyers and the child's representative will attend upon a Deputy Registrar for the purpose of defining the issues to be determined both on an interim and, if necessary, on a final basis and the sorts of evidence that may be necessary to enable those issues to be so determined."

1. The parties appeared before Heuer DR on 12 September 2003.  The Registrar made the following orders and directions:

"The matter is adjourned to a list conducted by a Judge on 30/9/2003 at 10 am for interim hearing on issues outlined on last page.

On the last page the following appears:

"Issues for determination on interim date:

1.Rice v Asplund as preliminary issue

2.       Further O 30A report

3.        Expedition of final hearing

4.        Variation to existing contact pattern"

1. The matter returned to Faulks J on 30 September 2003.  By then the mother sought to rely on an Amended Application that sought by way of final orders that M reside with her.  She also sought by way of final orders very detailed contact orders and orders regulating the way in which the parties should act towards each other in carrying out their parental obligations.  She sought in the alternative by way of final orders that M have contact with her mother inter alia during school terms from after school each alternative Wednesday until the commencement of school on the following Monday.  She also sought many other detailed orders for contact and the regulation of the parties' relationship.

1. The application sought by way of interim orders:

"1.That the Final Hearing of the mother's application for Parenting Orders…be expedited.

2.That Dr R be appointed as a Court expert pursuant to Order 30A to inquire into and report on the child…with the Terms of Reference to be agreed between the parties or determined by the Court."

1. It also sought by way of interim orders contact orders and orders regulating the parties' conduct towards each other that were in identical terms to the final orders sought in the alternative if the mother's application for residence was unsuccessful.

1. By way of Amended Response the father repeated his response to the earlier proceedings indicating his consent to some of the matters sought, his consent to contact as already agreed from after school Friday until 5.00pm Sunday plus alternate Wednesday plus some school holidays, and he otherwise sought an order that the mother be restrained from filing any further applications in relation to contact or residency without leave of the Court.

1. When the proceedings came on for hearing before Faulks J the mother had filed an affidavit containing 199 paragraphs, plus annexures.  She also sought to rely upon an affidavit of a psychiatrist Dr H that annexed two reports.  She also filed an affidavit sworn by her father, an affidavit sworn by her present husband and an affidavit sworn by her mother. 

1. The father sought to rely upon an affidavit of his own in evidence and an affidavit by his present wife. 

1. The child representative filed affidavits by persons who had acted as supervisors for contact following Faulks J’s February orders as well as affidavits by M's school teacher, and the Head of the Junior Section of the school attended by M and who had been previously been M's kindergarten teacher. 

1. The evidentiary material sought to be relied upon by each of the parties exceeded 300 pages.

The hearing before Faulks J

1. Ms Tonkin appeared on behalf of the mother.  His Honour immediately asked Ms Tonkin to identify what change there had been since the February hearing that would justify a re-examination of the residence issue. 

• Ms Tonkin drew his Honour's attention to the reports of Dr H that the mother did not pose a risk to the child. 

• Ms Tonkin then indicated there was now in place unsupervised alternate weekend contact although issues relating to the school holiday contact remained to be agreed upon. 

• Ms Tonkin then indicated that the other significant matter was M's wishes. 

1. In discussion his Honour then indicated that he had read all of the affidavits and they were:

"indicating mixed messages about where she wants to live with each person and by and large I could probably accept what has been said."

1. Discussion then continued between the trial Judge and Ms Tonkin in which Ms Tonkin sought to emphasise the importance of the child's wishes and the need to further investigate what those wishes genuinely were.  In the course of that discussion his Honour indicated that the wishes of the child were a matter he took into account when he made his decision in February and put forward a proposition with which Ms Tonkin appears to have agreed, namely:

"What I'm saying is unless you're going to elevate them with whatever changeability may accompany them to a determinant factor at any age at any time, however expressed…then it cannot possibly be a basis for re-opening."

1. Ms Tonkin then returned to the issue of the first hearing and endeavoured to persuade the trial Judge that his Honour had not fully dealt with the residence order in the previous hearing.  It was a submission with which his Honour did not agree.

1. After receiving submissions from both the father's counsel and the child's representative indicating that they opposed the reopening of the residence proceedings, his Honour returned to his discussion with Ms Tonkin and concluded by indicating that he would reject her application for the re-opening of the residence proceedings.

1. It is convenient that we now deal with the appeal against the refusal to permit a re-opening of the residence issue before returning to consider the issues relating to the contact variation application.

1. In order to understand the context of his Honour’s reluctance to allow a re-opening of the residence issue, it is necessary to set out some of his Honour’s reasoning in the February judgment when the residence order was made.

The initial judgment on the residence issue.

1. As already mentioned, until February 2003 M had lived all of her life in her mother’s care.  There had been a long history of contact difficulties accompanied by allegations that the father had abused the child.  The original hearing before Faulks J commenced on the basis that it was a hearing about what contact (if any) that M should have with the father.  It subsequently developed into a contest over residence after evidence emerged of a photograph of M having been placed on the mother’s front door with a piece of string attached so that it appeared to depict the child with a noose around her neck.  A key issue arose as to who was responsible for the photograph.

1. His Honour said:

"The photograph.

16.I turn then to the photograph incident which was reviewed at some length in all of the evidence before the Court.  This incident, as the parties need hardly be reminded, involved the attachment to the front door of the [F's] residence of a cut-out photograph of [M] dressed as she was at her father's second wedding, with a piece of string tied around her neck and that string was then affixed to the door.  The implication certainly drawn by those who saw it, appears to have been that the string was to represent a noose.

…

34.So far as the mother herself is concerned, the attachment of the photograph to her front door would, it may be seen, put blame on Mr [C] who might therefore have been eliminated as possible person in [M's] life.  That seems at least in part to have been her objective in other parts of these proceedings and leaves her as the person most likely to have that motive.

…

51…I cannot, in default of there being an admission by the mother, be satisfied beyond reasonable doubt that she has done what she is accused of doing, but in my opinion I can reasonably find that she did that, notwithstanding the relatively high standard of proof required.

52.What I cannot say, and have no evidence about, is whether this event occurred as a result of some mental illness or a deliberate attempt to secure forensic advantage.  … 

…

63. …it seems to me that the situation is this.  Whoever had been responsible for the photographing incident was either seeking to obtain some forensic gain, in which case it may have been a calculated, deceiving and possibly malicious act, or alternatively it was an expression of some form of illness, mental or otherwise, which caused the person to do something contrary to what they would otherwise have intended.  In either case, the prognosis on the evidence given orally by Dr [Q], is unhealthy. 

64.Taking first the possibility …that she is suffering from some mental illness.  If she is, Dr [Q] believes that this may represent on her part a fantasy of killing [M].  In such circumstances, Dr [Q] says that that would put [M] at significant physical risk from her mother. 

65.If, on the other hand, the action had been undertaken on the basis of trying to win the case, as an example of desperation on the mother's part, and as possibly a last throw of the dice to try to finally bring about a situation where [M] was within her care and control for the future, then it was undertaken, as Dr [Q] expressed and which I accept, in a total disregard for the best interests of [M], because of the probable fact that [M] would come to know of the incident and would be concerned for her own safety possibly, or for other members of the family.  At the very least it demonstrates an almost total abrogation of the principle the child's best interest should be put ahead of the parent’s, and in those circumstances calls for a significant investigation as to what would be in [M's] best interests for the future.

…

68.Given the, by any measure, unfortunate history of this matter; the fact that in my opinion both the school teachers and the employee of the Department of Education, Youth and Family Services inappropriately or perhaps inexpertly rather than inappropriately investigated the earlier allegations made; the fact that [M] has been subjected to investigation, cross-examination by parents, by friends, by teachers, by social workers, by Dr [P]; that she has had the advantage or disadvantage of being involved with different counsellors at different times; the fact that [M] is expressing views which she believes, and is entitled to believe, would accord with the opinion of the parent to whom she is expressing them, is hardly a matter to be wondered at but rather it would be a matter of surprise if she did not.

…

71. … the cumulative effect of a number of assumptions, presumptions, unfortunate choices of treatment, and examination of the child, orally I mean not physically, have combined to produce a tragedy which in my opinion is quite remarkable in what amounts to a fairly short time in this poor child's life.

…

74.I accept that if I make an order that [M] live with the father that this would have a serious, and I adopt Mr [MA's] word, devastating effect upon [M]….

…

86.Finally, the Act requires that I should consider whether any orders that I make will be likely to reduce the prospect of further litigation.  Given the horror of this extended litigation, the emotional bankruptcy that the parties must all feel as a result of it, and their personal financial losses as a result of litigation, it would be inhuman to think that there should be any further litigation about these matters.  Nevertheless, in my opinion, as would be apparent from the orders that I am about to announce, it seems to me that it is almost inevitable that there should be further litigation as some point…"

1. Orders were then made that:

"2.[M] born […] May 1994 live with her father.

3.Until further order or agreement of her parents, [M] will have contact with her mother under the supervision of [K] Home Care or of the [C] Changeover and Contact Centre, at such time or times as may be agreed between that organisation and the parents.  Such contact will occur subject to the agreement of the parties, on a weekly basis and will not include, unless the parties otherwise agree, any overnight contact. The cost of such supervision will be met by the mother."

1. His Honour continued:

"90.I make that order on an interim basis on this basis.  I cannot be satisfied on the evidence I have before me as to the reasons why the incident that I have referred to as the photo incident has occurred.  In such circumstances, I cannot at this point exclude the possibility that there would be some potential physical harm to [M] if she were in the unsupervised care of the mother.  …I emphasis it may be necessary because I am unable to say because of the inadequacy ultimately of Dr [Q's] evidence to form any concluded view about the matter.

91.Nevertheless, until the matters that I set out in the following orders have been accomplished, it seems to me I must take the course which ensures that there is no possibility of any physical harm to [M], or indeed for that matter any emotional or psychological harm.

…

(5).     When those treating or assisting the mother are able to certify that it is appropriate to do so, the child's representative may make further application to this Court for additional orders about contact, with either a different form of supervision or alternatively with no supervision. 

93.It is for that reason, as I indicated previously, that litigation in my opinion is to some extent inevitable.  However, and I say this in indicating my trust ultimately in the parents as the best judges of what is best for their child, I make this order.

(6).Notwithstanding the above mentioned order, nothing is to be taken to prevent the parents from agreeing, if they are able to do so, about different forms of contact if they mutually consider that it is in M's interests that such contact should occur.  However, if such agreement is reached and the contact is to be on a continuing basis, each parent will notify the child's representative for the purposes of ensuring the child's representative applies to have the orders presently made by me varied by consent.

94.What I am saying in that context [is] that it is possible, I do not say probable, but it is possible, that the parents of [M] may find that they are able to reach agreement about arrangements which are different from those that I have described as I must from a formal position.  If that is so, then those arrangements may occur on one occasion or they may occur on a continuing basis.  I am suggesting that if they occur on a one-off occasion, my trust is in the parents to do what is best for [M].  If they are to be on a continuing basis, then in my opinion given the history of this matter, it is important that the orders themselves be varied to ensure there is no confusion and no further application for contravention of an order based upon someone's misunderstanding about what orders may be applicable.

…

99.There are a number of imponderables, even unfathomables in this.  I accept that [M] is in a situation where the change is going to be one of significant trauma for her…"

The September judgment on the reopening of residence.

1. In his judgment delivered 30 September 2003 setting out his reasons for dismissing the application for a reopening of the residence issues his Honour cited the decisions of Rice v Asplund (1979) FLC 90-725, D v Y (1995) FLC 92-581 and King v Finneran (2001) FLC 93-079, as authorities for the proposition that there needed to be demonstrated a substantial change in circumstances and a strong case that might lead to a different result being obtained after a further hearing before he should allow the issues to be relitigated.

1. He then examined the submissions of Ms Tonkin as to the changes said to have occurred saying:

"12In this matter the mother asserted these changes had occurred.  First, she had…attended upon a psychiatrist, Dr [H], and that Dr [H] had in his report… indicated that there was no physical danger that he could see which could be caused to [M] by [M's] mother.  This was in answer to a twin-pronged issue that had been left, to some extent, unresolved by me in my judgment, namely, that the significant event of affixing a photograph of [M] to the mother's front door with a noose around its neck was the mother's responsibility, may in the circumstances, have arisen from a mental illness on her part or may have arisen from some desire to exact a forensic advantage in the proceedings then pending before the Court.

13I am satisfied from Dr [H's] evidence at this point that we can safely put to one side any issue that the mother may be suffering from a mental illness which would endanger [M].  What I cannot put aside, however, are any alternate considerations. 

14       It is argued by Ms Tonkin very forcibly on behalf of her client that because there was no danger then this in itself constituted a change.  I do not accept that that is so given the dichotomy of possibilities that I canvassed during the course of my judgment. 

15Secondly, it was asserted on behalf of the mother that there had been a change in that since judgment [M] had expressed wishes that she wanted to live with her mother. 

16The wishes [M] expressed were canvassed by each of the parties and other witnesses whose affidavits were before me this day.  It suffices to say that at least on two occasions it appears that [M] has said to her mother that she wanted to live with her.  The circumstances in which those [statements] occurred have not been tested in evidence before me, but I am satisfied that, nevertheless, they probably represented what [M] may have felt at that particular moment. 

17Equally there is evidence before me that [M] wanted to live with her father and there is overwhelming evidence before me that [M], notwithstanding my hopes and expectations (even at the end of the hearing) might be relieved from the pressure she had previously felt from both parents, was still the subject of that pressure and still the subject of at least implied, if not direct and not deliberate, investigation about where she wanted to live. 

18I do not regard the wishes of [M], as expressed as they have been in these proceedings, as being conclusive nor would I place her in the position where she is to be responsible in the future for determining where she is to live simply because of what wish might be extracted from her by one parent at [any time]. 

19To provide for this to be a proper basis for reopening a matter for a child of this age would be to invite a reciprocal application shortly afterwards (if that application were successful) based on a new alleged change in wishes by [the child]..  She should not be subjected to that form of pressure - direct or indirect by her parents in the future. 

20So to the extent that the question of her wishes bears upon her best interests it seems to me that even if I were to be satisfied that she had expressed an unequivocal wish that she wanted to live at this point with her mother it would be inappropriate to [permit] further litigation to proceed at this point. 

21I say, however, that I am not so satisfied and in my opinion her wishes as expressed are at best equivocal and more appropriately categorised as being indicative of her responding as best she could at her age and maturity and experience to the pressure she felt from each of her parents to feel loved and wanted.  It is the sad thing..  She should be loved and wanted, not the parents.

22The third issue that was raised as representing a change was that this was now a matter in which the residence was put into perspective and that in the previous proceedings residence had not been in issue and that the mother had not, therefore, put forward those matters which would be in the best interests of [M] and which would enable the court to make a determination that [M] should live principally with her.

23This is really a construction of what happened in the previous proceedings and I do not accept, first, that the residence was not an issue in the previous proceedings.  It was.  I do not accept that I did not make a determination about residence.  I did.  I do not further accept that I did not make a decision about residence in circumstances where at least in substantial fashion, eg, the circumstances of each of the parties were known to me.  I have no doubt that either of them would prefer to put further evidence about these matters to enhance their respective cases. 

24I do not accept that this is 'new material' except in the obvious sense of the word that it was not previously before the court.  That in itself does not constitute a basis for change.  It does not constitute a strong reason.  It does not constitute a significant or substantial change.

25Finally, there is the question that since the time that I made my orders there is increasing contact between [M] and her mother.  This is a result, as appears from the affidavits of each of the parties, of agreement between the parents conducted on a regular basis with the assistance of a number of professionals and has resulted in what might be loosely termed an arrangement which is equivalent to [what might be termed] 'ordinary contact'. This does not mean that it is the right contact for [M] with her mother.  It simply means that is the extent to which the parties have been able to agree. 

…

26In all it seems to me that there is no basis established from the evidence before me which would suggest that there is a strong or substantial or significant change in circumstances since I delivered my judgment which would bring about any basis for a change in the residence of [M].  Accordingly, in my opinion, the application to bring proceedings about residence falls at the threshold of Rice v Asplund and I dismiss that application (emphasis added)." 

The grounds of appeal

1. Whilst the grounds of appeal are discussed more extensively below at paragraph 78 and following, it is convenient to now set out the first of those grounds to better understand the context in which the relevant principles apply.  That ground was:

“The learned trial judge erred in finding that there had been no change in circumstances that warranted a hearing of the matter in circumstances where:-

(a)the mother sought to rely on evidence from a psychiatrist who reported there was no unacceptable risk to the child posed by her mother.

(b)the parents had agreed to the mother having unsupervised contact; and

(c)The child continued to express a wish to live with her mother.”

Relevant principles to be applied when summarily dealing with an application to relitigate residence issues

1. The Family Law Act 1975 provides in s 65D that in proceedings for a parenting order, the court may make such parenting order as it thinks proper and that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

1. There are no guidelines or requirements contained in the Act as to when a court may refuse to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to exercise its jurisdiction (c/f s 83(2) – requirements to be satisfied before varying a maintenance order).

1. The principles that have been developed by the Full Court in such applications are well settled.  In Rice v Asplund Evatt CJ, with whom Pawley SJ and Fogarty J agreed said at 78,905:

"The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will 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…"

1. In Griffiths and Griffiths (1981) FLC 91-064 at 76,500; (1981) 7 Fam LR 322 at 323-324; Lindenmayer J said:

"In order for the husband to achieve a change of custody, even after a full hearing on the merits, he must establish a significant change of circumstances since the last order was made; a change of circumstances sufficient to justify a review by the Court of the custodial situation…"

1. Nygh J, with who Evatt CJ and Burton J agreed, said in F and N (1987) FLC 91-813; (1987) 11 Fam LR 664 that the Court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.

1. In Bennett v Bennett (1991) FLC 92-191; (1990) 14 Fam LR 397 Nicholson CJ, Simpson and Finn JJ accepted as correct the general principle expressed by the Full Court in Rice vAsplund that fresh applications for custody should not be entertained unless there existed a substantial change in circumstances.

1. In Saad v Saad (1993) FLC 92-332 at 79,519; (1992) 16 Fam LR 55 at 71 Baker, Lindenmayer and Moss JJ said:

"(3) Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be  satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC 91-857.)

(4) It was therefore not for the wife to adduce evidence sufficient to satisfy her Honour that Burton, J's [sic] orders should continue in force, but rather for the husband to at least place before her evidence sufficient to justify a reconsideration of those orders, and only if that were done was her Honour called upon to decide, in the exercise of her discretion, whether the welfare of the child required the discharge or variation of those orders, or their continuance."

1. In D and Y (1995) FLC 92-581 at 81,764; (1995) 18 Fam LR 662 at 671-672 Nicholson CJ, Baker and Tolcon JJ appear to have narrowed the circumstances in which a fresh application for a parenting order might be considered when their Honours said:

”The general principle, that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances, has been consistently stated in cases such as Rice and Asplund, Zabaneh and Zanbaneh, and Bennett and Bennett.

In Bennett's case the Full Court considered a ground of appeal which argued that trial Judge had erred by embarking upon a full custody hearing without making it clear she had done so, when she ought to have first determined whether there was a sufficient change in circumstances to warrant doing so. The Full Court said it was a matter of discretion for the trial Judge:

'The fact that the determination as to whether or not to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of   Lowe v Lowe (6 April 1990). In that case, Elliot J had, in fact, dealt with the threshold question as a preliminary matter and the High Court thought that it was within his discretion to do so, but made it clear that the matter was one of discretion. We may say in the present case, given its history, we would have been disposed to deal with the threshold question as a preliminary matter, but we are not satisfied that her Honour's discretion miscarried in embarking upon the course that she did.'

In the present case, we can see no reason for criticising Bell J for exercising his discretion to require the wife to establish as a preliminary matter whether there had been a sufficient change of circumstances to justify the reopening of the issue of custody.

There had already been a nine day hearing on this issue a little more than two years previously and the actual change in custody had only occurred following the giving of the decision by Warnick J on 17 December 1992. In such circumstances we consider that a Judge would be extremely loathe to reopen the issue of custody except on strong grounds and would normally require, as Bell J did, that the matter should be determined as a preliminary issue." (emphasis added, citations omitted).

1. Most recently, Collier J, when determining an appeal from a Federal Magistrate in King and Finneran (2001) FLC 93-079 dealt first with an argument that following the extensive amendments to the Family Law Act in 1995, it was now mandatory to conduct a full inquiry of the matters set out in s 68F whenever a parenting order is sought.  We agree with his Honour’s view that the legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is the application of a threshold test, to be unavailable since the coming into effect of the 1995 amendments.   His Honour correctly observed at 88,367-88,369:

"41. The rule in Rice and Asplund  is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.  

42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.

43. …It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191 ).

44. To apply the test in Rice and Asplund  is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.  

…

49. Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.  

50. … In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.  

…

62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.  

…

64. … the purpose of the rule is to protect the children from exposure to further unnecessary litigation."

1. Although this point was not argued before us it may be that there is need to add a caveat to Collier J’s view that it may be sufficient to allow a fresh application to proceed if there is a “real likelihood that a change may follow”.  In CDJ v VAJ (1998) 197 CLR 172 at 204; FLC 92-828 at 85,449; 23 Fam LR 755 at 780-781; the High Court determined an appeal concerning the circumstances in which a Full Court might admit further evidence in a parenting case. McHugh, Gummow and Callinan JJ said:

"[117]  The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better 'custodian' of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.

[118]   The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings."

1. Their Honours expressed the view that further evidence might only be allowed if it would clearly have led to a different conclusion.  They said [CLR at 217-218; FLC at 85,457-85,458; Fam LR at 792] :

"[148]…New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A (2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A (2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.

[149]…in the context of a case such as this one, the relevant purpose of s 93A (2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.

[150] In some exceptional cases - those concerned with allegations of physical or psychological abuse of a child are an example - it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal…"

1. Though there may be important distinctions between the considerations bearing upon the receipt of further evidence on appeal and the reopening of a parenting order at first instance, it may be proper that a judge considering an application to relitigate a recently completed parenting case should bear such considerations in mind. 

1. It is apparent from the reasons expressed by Faulks J that the matters discussed in the authorities mentioned above were the very considerations that led him to dismiss the mother’s application to reopen the residence issue.  Even more recently than in D v Y there had been a full hearing on the issue.  It was clearly within a proper exercise of his Honour’s discretion to conclude that the matters sought to be raised by the mother did not amount to changed circumstances such as to justify a further round of investigation and preparation of reports at great financial cost to the parties and the community and at great emotional cost to the child.

1. It was much to the credit of all of the parties that the child had been able to establish a regular contact regime with her mother.  It was no doubt of significant relief to all the parties and to the Judge to discover that the mother was not suffering from any serious psychiatric condition.  It was no doubt to be expected that the child might continue to express to her mother a wish to live with her.  However none of those considerations ought to have led his Honour to conclude that the welfare of the child required a further investigation into the wisdom of continuing the residence orders made only seven months earlier.  We detect no error of approach or outcome in respect of his Honour’s order dismissing the mother’s application to relitigate the residence issue.

1. It is now appropriate that we return to the second matter agitated before us, namely his Honour’s refusal to allow there to be a further hearing on the mother’s application to increase contact beyond that agreed upon between the parties.  

Discussion about the contact variation application

1. After announcing that he was not intending to allow the residence application to be reopened his Honour then commenced to examine the conflict between the parties in respect of contact and communication issues.  Ms Tonkin on behalf of the mother said:

"…we would ask your Honour to make orders on an interim basis in accordance with the orders that the mother seeks from Wednesday until Monday."

1. His Honour rapidly rejected that suggestion to which Ms Tonkin replied that:

"…the mother would foreshadow, following your Honour's judgment, bringing an application [for] final orders, that that be the contact regime."

1. His Honour then, after some further discussion said:

"…if she makes an application I will deal with the application.  But it---

MS TONKIN: Well your Honour it is on foot.

HIS HONOUR:        Well, it is on foot.  But my determination about that, I say to you, is simply that that is just another way of avoiding the threshold question, and it is my - my determination on the last occasion was absolutely clearly that [M] would live principally with her father and that she would have contact with her mother.  Now, the contact with mother was initially in very restricted terms for a number of reasons.  The parents in the exercise of their responsibility - and it is to be commended, not otherwise - have agreed on a different regime, which brings about what I might loosely term a normal contact arrangement.  Now, what you are seeking in relation to that is a much more extended contact arrangement.

MS TONKIN: On a final basis.

HIS HONOUR:        On a final basis.  And that, as I said, goes right back to the question of where we were coming from in the first place.  And in my view, that is a different arrangement altogether.  You could not say, in line with what was said in Rice v Asplund, D v Y, and King v Finneran, that this is something that would have automatically flowed from the first decision.  It is a new thing.

…

HIS HONOUR:        I have made a determination about contact.  My determination about contact was there should be supervised contact.  I made a further determination about contact, which was that the parents could, if they wished, with the assistance of the various professionals that I had injected into the scheme of orders, reached agreement about a different arrangement.  That does not mean that in the event that the parents don't agree, that we are right back to where we were in the beginning, and start arguing about the extent to which contact will occur.  I have made that determination."

1. His Honour then indicated that if there was still a dispute as to the extent of contact notwithstanding the parties' agreement, then he would make a decision about any applications that the mother sought to bring "on the basis of the evidence before me".  Ms Tonkin replied:

"Well, your Honour, I am not asking that, and I wouldn't ask you to do that today.

HIS HONOUR:        Well why would you not ask me to do that? What additional evidence would anyone want to put before me about that?

MS TONKIN:            Well, your Honour, just in relation to some cross-examination of the father---

HIS HONOUR:        About what?  I mean, what are you asking me to do - leave aside the other orders for a moment.  What you are asking me to do is to change the agreed pattern of contact at the moment, which is from I think Friday night until Sunday night, I am not sure precisely but I think that is right.

MS TONKIN: Yes, that is right.

HIS HONOUR:        To move it back to Wednesday. What cross-examination of the father could possibly bring about anything that would assist me to make a decision about why I should expand that contact by one and a half days?

MS TONKIN: Well, the reasons why the father would confine the mother's contact."

1. After some further discussion his Honour said:

"…What I am saying to you is that you are asserting a proposition that it is in M's best interests to have the additional time with the mother.

MS TONKIN: And it is a matter for your Honour.

HIS HONOUR:        What I - well, if it is a matter for me, then it is a matter for me on the evidence before me

…

And there is no evidence that supports that proposition."

1. After some further discussion Ms Tonkin made it clear that she was no longer asking for an increase in contact beyond that agreed on an interim basis.  His Honour then asked what additional evidence would be necessary to do it on a final basis.  Ms Tonkin drew attention to the wishes of the child and his Honour indicated that the child's wishes did not particularise the type of application that was being made and if he accepted the mother's evidence that the child wished to live with the mother his Honour was not prepared to assume that this meant that if the child could not live with the mother full-time that she would want to live with the mother for as much time as she possibly could.  Ms Tonkin then returned to submitting that she had interpreted the trial Judge's February orders as being final orders in respect of residence and interim orders in respect of contact leaving the whole issue of contact still open.  His Honour endeavoured to disabuse Ms Tonkin of that view stating "No they were final contact orders…"

1. His Honour then drew attention to the amount of money the parties had already spent on litigation and indicated that he was not anxious to require them to embark on yet another expensive round.  Ms Tonkin said:

"I understand exactly what your Honour is saying given the 11 days hearing.  Look, your Honour I will have to take some instructions---

HIS HONOUR:        You take some instructions, but just---

MS TONKIN: On a final basis---

HIS HONOUR:        But just let me be clear about what it is so there is no argument about this after the event.  I asked you what additional evidence you may require if there were to be a final hearing about what you say is contact.  Now there is an issue about whether or not it is contact or shared parenting, but leave that to one side, let's assume it's contact.  Your response to me about that was you would rely upon previous evidence which you can rely upon today there is nothing that says you can't and you would rely upon the cross-examination of Mr [C].  I suggested to you there was nothing in that that would enable me to make the determination you are asking me to make."

1. His Honour then delivered a judgment in respect of the residence application and adjourned the matter for the luncheon break.  After lunch Ms Tonkin asked that his Honour make orders for contact as had been agreed but that otherwise:

"…the matter be listed for final hearing.  The mother would proceed on her application, which is the Wednesday till Monday application, and has no intention of changing that application."

1. She said further:

"…I would need to give proper and considered attention to what evidence I would lead in the final hearing and indeed as to what witnesses I would call to be cross-examined, if any.  And if I go down that track I'm sure can refine and confine the issues and would need no more than one day to agitate final contact orders.  I've had lengthy discussion over the luncheon period with my client and Ms [D] and I'm really not in a position - I haven't prepared the matter for final hearing, your Honour."

1. Counsel for the child representative said that it was her submission that it would be in the child's best interests "to set the current arrangements in concrete in orders today”. 

1. After further discussion as to whether the orders that the child representative was submitting were appropriate Ms Tonkin re-entered the discussion saying as follows:

"Just following (indistinct) your Honour made orders on 25 August 2003, order 1 stated that the interim application was adjourned to 22 September 2003 to the duty list and I understand that that date was vacated and we found ourselves here today on an interim application.  So I would ask your Honour to make orders on an interim basis.

HIS HONOUR:        You heard what Ms Godtschalk said about that and while I accept what you say about not being prepared to deal with the matter on a final basis…---

…

Not having come here prepared to deal with the matter on that basis.

…

HIS HONOUR:        …what is the evidence that you would want to put forward about the question of costs [contact?] which isn't already before the Court?

MS TONKIN: Well your Honour, as I said to you I would like time to consider each of the affidavits at length, take---

HIS HONOUR:        But why?  I mean, what is there - and you've come to Court today prepared to argue (indistinct)---

MS TONKIN: Well, - on an interim basis, your Honour does not usually allow or permit [cross-examination] or if---

HIS HONOUR:        Yes but what do you say is - what is the evidence ---

MS TONKIN: (indistinct) issues---

HIS HONOUR:        ---that if it came to the point where you were making final submissions to me and I said to you, well, what's the evidence to support the proposition for which you're contending, what additional evidence would you want to be put before the Court other than that which was there?

MS TONKIN: Your Honour, in terms of additional, I haven't turned my mind to whether an order 30A would be appropriate in relation to (indistinct) and I understand your Honour had commented in your final judgment in regards to that.  The child has been interviewed by Dr [P] and Ms [O] as I understand.  But indeed, in terms of an order 30A report, the wishes of a nine year old are quite - are relevant to your Honour's determination. So that's one matter.

The other matter is a testing of the evidence that the parties - how the parties reached agreement---

HIS HONOUR:        With what purpose?  I mean, asking questions - I'm not suggesting you do this, which you don't - but asking questions of witnesses simply for the purpose of asking questions of witnesses is…a very useless exercise.  What would you expect to obtain from cross-examination?

MS TONKIN: It's the mother's view that the father is seeking to restrict her contact with the child on no proper basis…

HIS HONOUR         Well let's assume that's so; where does that get you? Let's assume that that was what you succeeded in obtaining at cross-examination, which would be difficult but possible, where do we go from there?  What flows from there?

MS TONKIN: That your Honour determines that it's not appropriate to restrict the mother to an alternate weekend contact parent.  That this child---

HIS HONOUR: No, no, that's assuming that I had some reason for not doing that.

MS TONKIN: Yes. But this child expresses a wish consistently and strongly that she wants to spend more time with her mother and it's appropriate in the circumstances that the child does so.  Your Honour, that's a determination which will be open to your Honour on the final hearing.

HIS HONOUR:        Well cross-examination would not make any difference would it?

MS TONKIN: Well it may and it may not."

1. Ms Tonkin then suggested that evidence might disclose that the husband had abrogated his responsibilities for the child to his present wife.  She then returned to the difficulties that she faced saying:

"Well, your Honour may think it's far more appropriate that the child spend more time with her mother than Ms [C], as in terms of competing parents.  Your Honour, the problem that I have today is that I was instructed to prepare an interim application and I was instructed to prepare a Rice v Asplund threshold question, which is what I did.  I haven't even conferenced Ms [F] in relation to final matters, and I haven't conferenced Mr [F] or the grandparents or anybody.  I'm not in a position to clarify succinctly today to your Honour what issues would be agitated on a final hearing basis.  What I can reassure your Honour of is this;  that if there is a pre-trial notice that those issues are strictly confined---

HIS HONOUR:        Well, there was a pre-trial conference and the issues were a variation of contact.

MS TONKIN: As to an interim---

HIS HONOUR:        I was told. You told me that.

MS TONKIN: No no. Interim.  I---

HIS HONOUR:        No, you didn't say interim.

MS TONKIN: I beg your pardon your Honour. I'll read from Ms [D's] note - I'm at a gross disadvantage to my client in that I cannot advance her position, your Honour, as I haven't had a proper conference with her.  The note is

Variation to existing contact pattern

That's Ms [D's] note."

1. After some discussion as to what it was that was actually said by the Registrar, Ms Tonkin said:

"And your Honour, I, rightly or wrongly, have proceeded on an interim basis.  The orders - your Honour said the interim application is adjourned to by default today.  And I haven't had a conference with Ms [F] or Mr [F] or in fact anybody.  And I've prepared this matter in accordance with the usual procedure in this Court on an interim basis, on the documents, in terms of making submissions.  The child's (indistinct) is another nine years with her parents is a long time.  And your Honour, it may be after today I will be able to give Ms [F] some advice, but I can't possibly agree to final orders.  Ms [F] isn't being (indistinct).

…

Your Honour, there are issues touched but lightly upon by Ms Godtschalk that I haven't had a chance to address in relation to competing paragraphs.  In fact, I don't have instructions on them. I've prepared an interim application.

HIS HONOUR:        I understand what you are saying, but even on an interim basis, one would assume that in all of this there is evidence to support an interim application."

1. Ms Tonkin then returned to emphasising the evidence about the wishes of the child.  His Honour said:

"…I think that the bottom line is that there is no additional evidence you can call is there?

MS TONKIN: Your Honour we say that there is, we say that---

HIS HONOUR:        Well what is it?  This is I think the fourth time I've invited you---

MS TONKIN: I can call on a final hearing, is that what you say?

HIS HONOUR:        Yes.

MS TONKIN: Your Honour, I'm not talking about new evidence, I'm talking about testing the evidence that's before you.

HIS HONOUR:        But what - the best person to be tested on that evidence would be your client.

MS TONKIN: Yes."

1. Ms Tonkin then asserted that the making of final orders would not be in the child's best interests.  His Honour said:

"Well, tell me why?

MS TONKIN: None of the evidence before you has been tested.

HIS HONOUR:        None of the evidence before me has been tested but what I'm asking---

MS TONKIN: It's unchallenged.

HIS HONOUR:        But what I'm asking is what would be accomplished by its being tested?  So far you have not provided me with anything, which would suggest that it could affect the situation.

MS TONKIN: There may be---

HIS HONOUR:        This is not official.

MS TONKIN: There may be a (indistinct) [concession?] on the part of the father and his partner that the child does indeed want to spend more time with her mother.  And that is a good thing.  But there's no suggestion of that today.  It may be that that is---

HIS HONOUR:        But that's an opinion. It's not a fact so it's not something---

MS TONKIN: And it may be that they say, well look we're willing to give her---

HIS HONOUR:        But in the circumstances---

MS TONKIN: ---the Monday morning.

HIS HONOUR:        ---where they have given instructions to their counsel, presumably at lunch time, that they don't agree to those things, why would they change that opinion in cross examination? 

MS TONKIN: Well.

HIS HONOUR:        I know you're skilful but there's a limit to what skill can produce."

1. Ms Tonkin then changed tack:

"Both parents agree that the child should have unsupervised contact with the mother. The mother would advance a case that given each of the section 68F(2) factors that she relies on in accordance with status quo, wishes her capacity to parent, her attitude to contact, etcetera, that it is in this child's best interests for her to have contact with her child from Wednesday to Monday morning. And that would be the mother's case.

HIS HONOUR: I understand that. But that, quite frankly, is no more than paraphrasing what's set out in section 68F(2)."

1. There was further discussion as to what might hope to be achieved by cross-examination to which Ms Tonkin says:

"I'm exhausted here trying to anticipate a final hearing when I haven't really had a conference with any of the witnesses.

HIS HONOUR:        …All I'm asking, and it’s a legitimate question of someone who's presented a case which seeks that there be this extension of contact, what are the matters that you have not got available to you now which you would have available if you had the opportunity---

…

MS TONKIN: Your Honour, I suppose we were relying heavily on the fact that there - in fact it goes back to the initial issues, relying heavily on the fact that there's no risk we would see."

1. After further discussion his Honour and Ms Tonkin returned to the immediate problem of the adjournment.  His Honour once again said:

"…I have been unable to extract from you, except in the most general terms, what additional evidence might be available in the final hearing.

MS TONKIN: Well, the problem is I haven't yet (indistinct).

HIS HONOUR:        I understand that but that's an assessment that experienced counsel can make as to what they might have views and how they might use it and what evidence they might get.

MS TONKIN: Certainly. 

HIS HONOUR:        I would have to say to you that whatever would be the situation, if you were saying, well, maybe [manna] will drop from the heaven of Dr [R]; the answer is that that heaven will not be coming because I'm not going to have [M] exposed to further interviews.  She's had - she probably knows more counsellors than most little kids have best friends.  And she's had more interviews than most kids have had birthday parties.  And it's just not reasonable that she should continue to be exposed to those things and be asked again and again; did you really mean it last time when you said what you said?…

…

MS TONKIN: Well, your Honour, at this stage there are issues in relation to Ms [C’s] assertions about wishes.  There are issues in relation to why the father restricted contact and his attitude to the mother.  There are issues about teeth, clothes, hair, own bedroom, school---

HIS HONOUR:        I don't accept…that last proposition…Your client raised those matters. They were responded to in the affidavit of Ms [C].  Your client's husband filed an affidavit as late as yesterday and those matters were not replied to in that.  Now, I'm not - I quite frankly think that the responses by Ms [C] are a reasonable return, a reasonable explanation of the things that were raised by your client.  And if there were - if they were not properly in that category, then I find it extraordinary, extraordinary that there would not have been a response in an affidavit filed as recently as yesterday.  Now, if that's the case, I'm entitled - I am not suggesting the old rule applies and what's stated and not contradicted is therefore admitted, but I'm entitled to assume that what appears on the surface to be reasonable is in fact reasonable and is in fact true."

1. Finally in apparent desperation Ms Tonkin said:

"Your Honour, finally, it is my submission that it not be in [M's] best interest to make final orders in relation to contact this day and indeed, as I indicated to your Honour, the only application for your Honour, as I understood, was the interim application (indistinct) [for] submission."

1. "Thank you" said his Honour and he then delivered the second judgment.

The contact judgment

1. His Honour commenced by identifying two issues namely whether or not there should be any orders made varying the existing orders made in February “on an interim basis” and, if so, whether there should be a provision for a final hearing about the questions of contact and final orders to be made in due course.  As there was no issue before us about the orders made that allowed a variation it is unnecessary to set out his Honour’s reasons for making them.

1. His Honour drew attention to the fact that the material before the Court was “by any measure extensive”.  There had been no restriction on the numbers of affidavits that have been filed and indeed affidavits have been filed by almost anyone that he could conceive might have been relevant to the proceedings.

1. He opined that:

"…[M] has had enough of being involved with experts who seek to inquire of her what her relationship is with each parent and other relevant people and what time she wants to spend with them.  It would be unfair to her to continue that system abuse, which is what in my opinion it would be, any further.  In addition, the fact that before the Court this day, on the direction of a Deputy Registrar, were the issues about variation of contact is significant in my opinion."

1. His Honour accepted without hesitation that Ms Tonkin thought she was attending to deal with the question of interim contact, but he concluded that Ms Tonkin and her advisers and the mother must have turned their mind to the evidence that would be necessary to establish the proposition that there should be an extension of the time that M spends with her mother by some two to three days a week, depending on which version of the facts is accepted. 

1. His Honour noted that he invited Ms Tonkin to outline the additional evidence that she said would be available in the event that the matter were allowed to proceed to a final hearing on the question of contact only “yet notwithstanding my invitations there was very little that she was able to say would be necessary for that final hearing”. 

1. His Honour did not accept that the testing of the witnesses in this case, particularly the father and his witnesses, would produce any evidence to support the proposition for which the mother contended on an interim and final basis.  He said:

"I have particularly pressed the question of cross-examination because in general terms I would agree with Ms Tonkin that it is fair to enable evidence to be properly tested before the Court.  But when no discernibly useful purpose could be [achieved] by such testing it seems difficult to argue that the deprivation of that opportunity would necessarily in any way reduce the level of fairness in the presentation before the Court."

1. His Honour noted that the strongest evidence in opposition to the proposition that the child needed to have her wishes to be reunited with her mother met came from evidence supplied by the mother herself in the second report of Dr H in which he indicated that the existing arrangements had enabled a return to the ease and “ordinariness” of the relationship as it had existed before the change in residence arrangements.

1. Before dealing with a few contentious matters about the parties ongoing obligations and duties, his Honour said:

"In my view no purpose is to be served at this point by exposing the parties and [M] to a further Court hearing and in my opinion I should seek to dispose of matters about contact in a way that leaves no further proceedings outstanding before the Court. 

…

It seems, therefore, that the appropriate step that I should take at this point is to determine on the evidence available to me whether there should be an extension of contact from the existing arrangements which appear to have been agreed by the parties relatively recently and according to the mother have worked well, or whether I should impose other orders and conditions.  Not all the orders and conditions are agreed between the parties, but some are. 

It seems to me that there is no evidence to support the extension of the existing contact from the Friday night until the Wednesday night apart from [an] arbitrary assertion…and in those circumstances, in my opinion, there is no basis for making that determination at this point. 

I fall short of saying that the [arrangement proposed] must necessarily constitute an application for shared parenting which would be a backdoor entry to the proposition that I have rejected earlier in accordance with the doctrine in Rice v Asplund.  On the other hand it seems to me that there is no basis, other than assertion, for the proposition that this must necessarily be in [M's] best interests.  Accordingly, I reject that proposition and I will make orders about contact which will reflect the existing arrangement at this point.”

The grounds of appeal

1. At the commencement of the proceedings Ms Tonkin, counsel for the appellant mother, indicated that she was not relying upon a summary of argument drawn by the mother herself but that she sought to rely upon a pre-argument statement filed 13 November 2003 as her summary of argument.

1. In so far as is relevant to the refusal of the trial Judge to further adjourn the hearing to enable issues of contact to be more fully ventilated, the pre-filing summary asserted:

"3.…all parties have proceeded on the basis that orders relating to contact were interim orders only.  The child representative without notice made an oral application on 30 September 2003 that contact orders be made on a final basis.  The learned trial (sic) erred in acceding to this request.

4.The manner in which the trial was conducted thereafter amounted to a miscarriage of justice.  The learned trial Judge allowed the matter to proceed to final hearing without giving the mother an opportunity to properly present material information in support of her case and to cross-examine the deponents of affidavits in circumstances where the mother's interests alone would be adversely affected by his decision.

5.The learned trial Judge prejudged the mother's application for variation of contact without properly considering the evidence…The learned trial Judge disregarded the fact that the parties had reached an impasse in relation to contact.  As such the trial Judge determined the matter in the father's favour without allowing the mother to properly conduct her case.

6.The trial Judge reached his decision for final contact orders upon material all of which was unchallenged and untested…he based his decision on part on the costs of litigation in circumstances where there was no evidence of this issue before the court.  His reasoning that no useful purpose would be served by exposing the parties to a further court hearing was not open on the evidence…the trial Judge had an obligation to determine the matter judicially."

1. In her formal grounds of appeal relied on in her amended Notice of Appeal in addition to matters contained in the summary counsel for the wife sought to further argue that the learned trial Judge failed to determine the matter in accordance with the provisions of ss 60B, 65E and 68F(2) of the Family Law Act. 

1. Ms Tonkin submitted that there was enough confusion about the procedural orders and the nature of the hearing before the trial Judge that the failure to give the mother a chance to put an expanded case amounted to a miscarriage of justice given the mother's expectations must have been that the Court would follow proper procedure. 

1. Ms Tonkin sought to rely on the first of the guidelines set out in Johnson and Johnson (1997) FLC 92-764; 22 Fam LR 141 and reconfirmed by the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072 at 88,279; (2001) 27 Fam LR 517 at 554 that:

"A judge should ensure as far as possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial."

Discussion

1. What occurred before Faulks J could be categorised either as

·     a refusal by the trial Judge to grant the mother an adjournment so as to enable her counsel to further prepare a case on behalf of the mother; or

·     an extension of the Rice v Asplund principles to the contact application 

1. The power to adjourn proceedings is discretionary.  A decision to grant or refuse an adjournment will be interfered with by an appellate court only in exceptional cases and then only where the discretion has been exercised on a wrong principle or resulted in a serious injustice (See Meggitt Overseas Limited v Grdovic [1998] 43 NSW LR 527).

1. The principles referred to by the Full Court of the Federal Court in Squire v Rogers (1979) 27 ALR 330 at 337 per Deane J with whom Foster and Brennan JJ agreed, and applied by the Full Court of this Court in Reed v Reed (1995) 20 Fam LR 229 would seem apposite:

"The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances…A court of appeal will not, as a general rule interfere with the decision of a judge at first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him.  This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal…and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion."

1. In the matter before us any evaluation of whether there was any serious injustice needs to be conducted in light of the copious amounts of material that had already been filed by the mother in support of her application for variation of the contact orders, the proximity of the application to the previous trial and judgment, the findings in the previous judgment that led to the contact orders being made, and that the Judge hearing the application for reopening was the trial Judge when the original residence orders were made. 

1. Given the peculiar nature of the case that had involved the change in an existing residence arrangement of some eight years standing in circumstances where there were serious issues of potential risk to the child, it was in our view open to the trial Judge to reach a conclusion that the further continuation of the proceedings would achieve no useful purpose or that the affording to the mother of what she perceived to be procedural fairness was outweighed by the potential cost to the parties and the damage that might be done to the child by further proceedings taking place.  In those circumstances the decision by the trial Judge to refuse the adjournment could not be seen as either an exercise of a wrong principle nor did it result in any serious injustice. 

1. When refusing to further adjourn the proceedings the Judge confirmed an agreement as to regular and frequent contact between the mother and the child.  There was prima facie nothing in the material that would demonstrate that the contact the mother sought would be any more beneficial to the child than that to which the Judge was prepared to accede.

1. It was urged upon us by Ms Tonkin that the right to cross-examine witnesses is an essential attribute towards the provision of procedural fairness.  The failure by the trial Judge to give the mother an opportunity to cross-examine was, it was said, a fundamental breach of procedural fairness such as to effectively vitiate the proceedings.

1. Nowhere in the transcript does it appear that Ms Tonkin sought to cross-examine the father or any of his witnesses on 30 September.  Rather she sought to have the matter adjourned to enable cross-examination to take place on some other day.  Nowhere in the transcript does it appear that the trial Judge invited Ms Tonkin to cross-examine any of the witnesses on that day.

1. In a different context in Luu v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213 at 223-224 Wienberg J dealt with a submission that an applicant in a migration case had been denied natural justice by being refused the right to lead evidence and make submissions in respect to circumstances surrounding the commission of an offence that was relied upon as the trigger for his deportation. His Honour said:

"The duty to act fairly, in the sense of according procedural fairness, may of course be breached if a party is not given a reasonable opportunity to make relevant submissions, to give evidence and to call witnesses in support…

At the same time, however the opportunity to make relevant submissions, to give evidence and to call witnesses in support which must be afforded will always be qualified by a requirement that the material and arguments sought to be presented must be sufficiently relevant and significant to warrant being received. 

A court may refuse to grant relief based upon a suggested denial of procedural fairness if it may safely be concluded that the completion of the submissions which were cutoff could have made no difference to the outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6."

1. In Stead and State Government Insurance Commission (1986) 161 CLR 141 when dealing with a refusal at first instance to enable some evidence to be tested the High Court said at 145:

"…an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial.  An order for a new trial in such a case would be a futility. 

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial."

1. In the same passage the High Court went on to express the view that a Full Court should proceed with caution before satisfying itself that a denial of natural justice could have no bearing on the outcome of a trial of an issue of fact.

1. Whilst the matter that presented itself before Faulks J depended to some degree upon the resolution of issues of fact, it ultimately required the trial Judge to make an order that was significantly influenced by M’s best interests.  That involved weighing up competing and conflicting considerations that might be seen to be pulling the Judge in opposite directions.  The evaluation of the outcome in such circumstances was a pure exercise of judicial discretion and as such we could not interfere unless it can be clearly demonstrated that there had been an error in approach or that the result was manifestly wrong.

1. In the context of this case, we would view the failure by Faulks J to allow any further adjournment of the proceedings and cross-examination of the husband's witnesses to fit comfortably within the concept that it could be safely concluded that such cross-examination would have made no difference to the outcome. 

1. What was being sought was the creation of a shared parenting regime in circumstances where the trial Judge had fairly recently conducted an extensive hearing into issues surrounding the welfare of the child and had determined those issues.  Having been advised of the circumstances that existed after the judgment had taken place, the trial Judge, in effectively accepting the mother's evidence at its highest, remained of the view that the mother's application for the relief that she sought could not succeed. 

1. We see no error in the trial Judge concluding that a further hearing of the proceedings was so unlikely to achieve any other result, that it would not justify the significant financial detriment to the family and the emotional detriment to the child that would necessarily be incurred in preparing for and conducting such a hearing.

1. As already mentioned, where there had been an extensive trial recently conducted, in our view, absent any clear evidence of gross detrimental effect to the child in the existing circumstances, it was quite appropriate for the Judge to seek to summarily conclude the proceedings which sought a reinvestigation of issues already determined.  Even if that course resulted in denying the applicant an opportunity to challenge the evidence being put forward on behalf of the respondent, given the extent of controversy identified in relation to that evidence, namely the opinion of the husband himself as to what was best for the child, and perhaps the depth of the wishes of the child, it could not in our view be said that this test had been met. 

1. On the mother's own concession the child was progressing favourably in the father's care.  Nothing about the evidence of the manner in which the child was being cared for by the father would bring the matter remotely close to the “exceptional cases - those concerned with allegations of physical or psychological abuse of a child” that the High Court spoke of in CDJ and VAJ (at para 150) as permitting some further examination of a parenting issue where the result, if the issue was further examined, might be different.  Those exceptional cases need to be contrasted to the limited category of cases that would otherwise permit a reinvestigation being cases where it was fairly clear that the result would be different.

1. When asked why she sought an adjournment in these proceedings, apart from indicating that she had not prepared herself to make submissions on a final basis, Ms Tonkin indicated that she wished to cross-examine the witnesses in case they might make some concessions or in case she would be able to demonstrate that their resistance to the orders sought was not sound. 

1. In Neocleous (1993) FLC 92-377 at 79,917 ; 16 Fam LR 557 at 565 Lindenmayer J described:

"The right of one party to cross-examine the other, or his or her witnesses, in relation to disputed issues of relevant fact"

as a fundamental right in adversarial proceedings.  The cross-examination sought by Ms Tonkin was not of that nature. 

1. The cross-examination, as described by Ms Tonkin, did not seek to challenge any of the facts before the trial Judge but somehow sought to demonstrate that the position taken by the father was not soundly based.  Ultimately the issue of the extent of time the child spent time with her mother could not turn upon the views and beliefs of the father but on what the trial Judge thought was appropriate given the needs of the child in the circumstances of the case.  Once again it became a balancing exercise as to whether or not the harm done in terms of economics and strain and stress of further investigation outweighed the gain to be achieved in terms of the welfare of the child if a further adjournment was allowed.  Even if this meant some curtailment upon the “natural justice” rights of the mother, it was a matter to be weighed in the balance and an appropriate result achieved.

1. It is appropriate to note that no attempt was made by Ms Tonkin before us to lead any further evidence or demonstrate that with the benefit of hindsight the welfare of M was somehow being affected adversely by the actions taken by Faulks J in refusing the adjournment. 

1. In so far as we might categorise Faulks J’s decision when dealing with the contact application as a general application of the principles in Rice v Asplund and D v Y, then it is difficult to see how his Honour erred in summarily dealing with the matter.  There were no “strong grounds” nor any “sufficient change in circumstances” that would warrant a radical departure from the earlier orders.  Although contact issues are frequently in need of finetuning, a move to extensively change their basic nature is often akin to a disguised residence application.  Great caution is properly called for before allowing a matter to be relitigated under the guise of a variation of contact.

1. There was nothing in the evidence sought to be raised by the wife which would have justified a reopening of the issue that had been dealt with several months earlier albeit that it had been left somewhat open-ended.  His Honour had apparently determined in the February proceedings that either the parties could reach an agreement between themselves as to the proper contact or that the matter could be re-agitated at the suit of the child representative.  His Honour having been satisfied that the parties had reached such an agreement and that the child representative was not seeking to re-agitate the issue, it was open for his Honour to then determine to summarily dismiss the application on the basis that to allow it to proceed further would not be in accordance with the welfare of the child.

1. In those circumstances, notwithstanding the confusion that surrounded the nature of the proceedings that were before the trial Judge, we see the course adopted by his Honour as being an appropriate exercise of his Honour's discretion with which the appellate court ought not interfere.  Indeed, on the material that was before us, the exercise of the discretion was not only open to the trial Judge but clearly right.

1. Finally Ms Tonkin submitted that the final orders were made without reference to the s 68F(2) factors that the Court was obliged to give consideration to.

1. When dealing with an appeal against a discretionary judgment in a children’s matter it is important to remember what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211; 24 Fam LR 756 at 795; FLC 92-852 at 86,042-86,043:

"[150] ... an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved …”

1. In Smith v Smith (1994) FLC 92-488 at 81,084; 18 Fam LR 55 at 63 the Full Court (Ellis, Baker and Kay JJ), referring to the manner in which the court should discharge its obligation under the Act, in coming to a decision in proceedings relating to the custody, guardianship or welfare of or access to a child said:

"... the preferable approach to be adopted is to consider each of the matters referred to in the section separately and having regard to the evidence touching upon each of those matters make findings in relation to them. In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all of those matters, a trial judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out."

1. This requirement to apply the “preferable approach” needs to be viewed in the context of the case. It is not absolute. There is no legislative requirement for a judge to spell out in each case exactly the findings about each subsection nor the weight to be given to such findings. Faulks J was not presented with a clean slate. His Honour had already made the requisite findings and determined these issues in his February judgment. The September proceedings could comfortably be considered as an extension of the earlier hearing. The findings and weight given to the various factors required to be considered under s 68F(2) can readily be discerned when one reads the February and September judgments alongside the September transcript.

1. For these reasons we would dismiss the appeal.

Costs

1. At the conclusion of the appeal hearing we sought submissions in respect of costs.  Each counsel indicated that if the appeal was refused there would be no order for costs sought.

Orders

1. The formal order of the Court will be that the appeal be dismissed.

I certify that the 114 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate