GILLAM & GILLAM - [2012] FamCAFC 130

FAMILY COURT OF AUSTRALIA

GILLAM & GILLAM

[2012] FamCAFC 130

FAMILY LAW – APPEAL – CHILDREN – Where the Magistrate dismissed the mother’s applications for final and interim parenting orders – Where the mother relocated from Kalgoorlie to Perth – Where the mother sought inter alia that the children live with her in Perth and spend time with the father – Where there were two previous hearings on parenting issues – Where the hearing before the Magistrate was conducted to determine whether there had been a change in the circumstances sufficient to warrant re-litigation of the parenting issues – Whether the Magistrate erred firstly in dismissing the mother’s application in a case for the appointment of a single expert to report on the children and in particular their wishes before determining the issue of whether there had been a sufficient change in circumstances and secondly in failing to give any reasons for such dismissal – Appealable error established.

Family Law Act 1975 (Cth)

Marsden v Winch (2009) 42 Fam LR 1
Rice and Asplund (1979) FLC 90-725

APPELLANT:

Ms Gillam

RESPONDENT:

Mr Gillam

FILE NUMBER:

PTW

3219

2006

APPEAL NUMBER:

2011

DATE DELIVERED:

24 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Perth

JUDGMENT OF:

Coleman, May & Ainslie-Wallace JJ

HEARING DATE:

14 June 2012

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

9 November 2011

LOWER COURT MNC:

[2011] FCWAM 70

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Castiglione QC with Ms Pivac

SOLICITOR FOR THE APPELLANT:

GG Legal

COUNSEL FOR THE RESPONDENT:

Mr O'Brien with Ms Bright

SOLICITOR FOR THE RESPONDENT:

O'Sullivan Davies

Orders

That the appeal (WA 34 of 2011 as amended by minute filed on 15 May 2012) be allowed.
That Order 1 of Magistrate Andrews of 9 November 2011 be set aside.
That the appellant mother’s Form 1 application filed on 8 December 2010 and the appellant mother’s Form 2 application filed on 27 June 2011 be listed for rehearing before a Judge of the Family Court of Western Australia as soon as possible.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of 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 mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 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 respondent 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 the costs incurred by each of them in relation to the rehearing of the appellant mother’s Form 1 and Form 2 applications.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillam & Gillam has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 34 of 2011
File Number: PTW 3219 of 2006

Ms Gillam

Appellant

And

Mr Gillam

Respondent

REASONS FOR JUDGMENT

The mother, Ms Gillam, by notice of appeal filed on 7 December 2011 and amended by minute filed on 15 May 2012, appeals from an order of Andrews M made on 9 November 2011 in which her Honour dismissed the mother’s applications for final and interim parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
In the application for final orders (referred to in her Honour’s judgment as the “Form 1” application), the mother sought inter alia that the children live with her. In another application (referred to as the “Form 2” application), the mother sought an order in relation to her proposed final orders that a single expert be appointed to prepare a report on the children’s wishes as to where they wanted to live.
The mother and father, Mr Gillam, married in 1996 and separated in 2006. There are two children of the marriage, B (born in 2001) and K (born in 2002).
In 2006 the mother commenced proceedings for an order that the children live with her and spend time with the father. The matter was heard and in April 2008 Penny J ordered that the children live week about with each parent. At the time of the orders, both parents were living in Kalgoorlie.
The mother subsequently moved to live in Perth and in June 2009 there was another hearing of parenting applications. In July 2009 orders were made providing for the children to live with the father in Kalgoorlie and to spend time with the mother.
At both previous hearings the mother asserted that the children wished to live with her.
It is undisputed that there have been difficulties and orders have been made to secure the children’s return to the father’s care after spending time with the mother. The mother asserts that they do not wish to live with the father and she had trouble persuading them to return to his care. The father disputes this and says that the children are happy living with him and wish to remain living there.
After dismissing both of the mother’s applications, her Honour ordered that the father’s response (referred to as the “Form 1A” application) “stand as” a Form 1 application. In that application, the father sought a final order that the mother’s application be dismissed. By way of interim orders, the father sought inter alia that a “…preliminary hearing be held to determine whether there has been a material change in circumstances sufficient to justify the Court entertaining the application for discharge of the final parenting Orders of 29 July 2009” and an order that the mother’s application for a single expert be adjourned pending the preliminary hearing.
It appears that her Honour’s order dismissing the mother’s application for the appointment of a single expert wrongly referred to it as having been filed on 8 December 2010. A later application seeking the same orders had been filed. It remains extant. In our view nothing turns on this point.

The Reasons of Magistrate Andrews

The hearing before her Honour was conducted to determine whether there had been a change in the circumstances sufficient to warrant re-litigation of the children’s issues.
Her Honour first considered what she referred to as “The rule in Rice and Asplund” and observed that the parties “…[seemed] to agree that Rice and Asplund is still good law” (at [5] of the reasons).
The parties had agreed that, in determining the issue, her Honour would consider the affidavit evidence filed by the parties (without cross-examination), the evidence given in previous hearings between the parties, the previous judgments as well as oral and written submissions made on behalf of the parties.
Her Honour said that she proposed to “…look at the mother’s case at its highest…” in determining the issue (at [9]).
No challenge was made to her Honour’s analysis of the law as to what amounts to a “sufficient change in circumstances” for the purposes of the hearing being conducted before her.
After considering the circumstances in which the earlier orders were made, her Honour traversed the mother’s asserted changes in the children’s circumstances.
Her Honour then turned to a consideration of the mother’s assertion that the children wished to live with her.
She said:
19. It is the mother’s case the children want to live with her. She says their views have become stronger and are expressed to her consistently and frequently.
20. As part of her case she wants the Court to appoint a single expert to report, inter alia, on their views.
21. She relies on the children now being two years older than when the Court previously dealt with the matter in the second trial and the children have now experienced living apart from her for the last 2½ years so more weight should be given to those views than previously applied.
It was undisputed that in none of the earlier proceedings had a report on the children’s wishes been obtained.
It was also undisputed that in each of the earlier hearings on parenting issues the mother had asserted that the children wanted to live with her.
Her Honour observed that this issue had been considered in both hearings.
Her Honour found:
29. The mother’s evidence on this point in my view does not disclose a significant change in circumstances such as to warrant a further trial on the issue of what is in the best interests of the children.
30. In this respect I find the following:
There was evidence of the children’s wishes from the mother available at the two previous trials.
At the second trial the Court found the children wanted to live with the mother but there were other factors that led the Court to its eventual finding. Those other factors are still present. A trial would cover the same ground.
The children are now aged 10½ and 9 years old. They are still at an age where the weight attributable to their wishes is not likely to be determinative of the case, but as in the other trials be but one factor to consider.
Some of the things the mother says the children raise in complaint and as reasons for expressing a wish to live with her are lack of out of school activities in Kalgoorlie, boring food, inadequate clothing, not being treated equally and not being happy in the company of the father’s partners child (sic). These are not substantial enough matters to suggest the children’s views are now somehow differently held.
The mother also raised the children’s relationship with the father and grandmother as reasons why they want to live with her. These matters were canvassed previously and the Court found the children had a good relationship with both parents and extended family including the paternal grandmother. The Court also found the mother was less likely than the father to shield the children from the dispute between the parents which may effect the children’s wishes and this finding would still seem accurate given the mother’s behaviour referred in paragraph 28 hereof.
The father’s evidence is the children are doing well at school and are thriving and happy. [B] does not appear to have needed further psychological counselling as foreshadowed in the previous judgment. Further both children are engaged in extra curricular activities which they like. As in the second trial the father says the children do miss their mother but generally go about their business and are happy. This is the same evidence he gave in the previous trials.
31. For those reasons I find, when scrutinizing the evidence of the mother, there is not a sufficient change in circumstances to require a further trial.
Her Honour then considered the mother’s case in relation to the father’s care of the children and set out the mother’s allegations. Having considered the father’s evidence, her Honour rejected each of the mother’s assertions.
Her Honour concluded:
54. In summary I have found that the mother has not discharged the onus on her to prove that there has been some significant change in circumstances in relation to each individual area referred to above to warrant a further trial on where the children should live. I also take a step away and consider all of the things the mother has raised together. My finding in this regard is that almost everything the mother has raised was raised in some way during the second trial and some during the first trial as well. It would therefore be inappropriate for the Court to make orders which would allow issues to be opened again. I agree with submissions made by the father that this application of the mother is precisely why the rule in Rice and Asplund exists, to avoid litigation when no substantial change has occurred.

The Appeal

The mother asserts three grounds of appeal.
Grounds 1 and 3 are connected and for convenience we propose to consider them together.

Grounds 1 and 3

Grounds 1 and 3 assert:
1. Prior to determining the issue of changed circumstances, the Learned Magistrate:
(a) Erred in principle given the best interests test in failing to give any due or adequate consideration to the application of the mother for an order appointing an expert to report on the children as sought in the Form 2 of the 8^th December 2010 or in the terms of reference as sought in the Form 2 in the case filed on 27^th June 2011 and in failing to order a report as requested by the mother and thereafter consider such report, before determining the issue of changed circumstances, the Learned Magistrate failed to consider various issues which addressed directly the best interests of the children being inter alia not only their wishes, but further, any recommendations in relation to the effects of any such wishes to be reported by the expert as envisaged by the terms;
(b) Erred in first identifying the principle that she should examine a broader range of processes and consider the wife’s case at its highest and then failing to give due consideration to the application for a report;
(c) Erred in not according procedural fairness.
3.That the Learned Magistrate failed to give adequate reasons in relation to not ordering a report as sought by the mother.
On 2 March 2011, when the matter was before her Honour, counsel for the mother, while conceding that the Form 2 filed by the mother in which she sought a single expert’s report was not procedurally correct, submitted:
TYDDE, MR: …the first issue will be, from our perspective, obtaining a single expert report and a form 2 and affidavit needs to be done to support that…
We observe that at that time the mother had filed an affidavit in which she set out the matters going to the children’s wishes.
While discussing the proposed course of the proceedings, her Honour said:
HER HONOUR: Well, I think there’s reason to allow further evidence beyond the next hearing date if the decision is for there to be a preliminary hearing, because there might be witnesses who corroborate what the wife says, there might be medical evidence, there might be something else, other than just her own evidence, that supports what she says that actually lends weight to what she says…
Counsel for the mother later reiterated the request for a single expert’s report.
The matter returned to her Honour for further directions on 1 June 2011 at which time counsel for the mother said:
TYDDE, MR: …The other matter that I’m instructed to raise is that as part of our application, we sought that a single expert be appointed to ascertain the children’s view, because we say in none of the litigation so far has there been a single expert report as to those matters, and the children’s views were important when your Honour decided the matter at trial…
Counsel for the mother indicated to her Honour that a particular expert had been approached and had consented to the appointment if ordered, and said:
TYDDE, MR: …My learned friend and I have a difference in approach. I say that that report would be important for your Honour to have before you in determining the Rice v Asplund argument, as part of the evidence concerning the Rice v Asplund argument, and my learned friend takes the view that that’s really putting the cart before the horse and defeats the purpose of really having a Rice v Asplund argument first, so as not to expose the children to being interviewed by another expert, or by an expert, because they haven’t been interviewed by an expert yet…
He then said:
TYDDE, MR: …But what we propose to do is to file a form 2 seeking the appointment of Dr [W] to ascertain their views, so we know what the children want, and then ask your Honour to deal with that as part of the evidence when you deal with the Rice v Asplund argument.
Counsel for the father submitted to her Honour that he had no instructions on the appointment of an expert but noted that the terms of proposed reference for the expert were broad. He then submitted that to have an expert appointed defeated the purpose of Rice v Asplund “…by exposing the children directly to the proceedings…” He said, “…But that’s something for the wife to put before the court in due course”.
Her Honour listed the matter for hearing and indicated that she would consider the wife’s application (presumably for a change in the orders) “on the papers” and then said, “…Any form 2 that’s filed in this matter can be listed at the same time”.
Her Honour agreed that, in adopting the course of considering the mother’s application on the documents filed and submissions made, she would in relation to any conflict on the evidence accept the mother’s evidence “at its highest”.
Before the matter was adjourned her Honour said to counsel for the mother:
HER HONOUR: All right. I have to stress that I obviously have not heard the argument. I have to stress also that I’ve read the documents, and the changes in circumstances sufficiently don’t jump out at me, Mr Tydde.
TYDDE, MR: No. The main change I would see as being the views of the children.
On 7 September 2011 submissions were made to her Honour. For the father it was argued that the matters said by the mother to constitute changed circumstances had been raised by her before and, it was submitted, were insufficient to cause a further hearing to be conducted.
Counsel for the father continued to submit that the views being expressed by the children have been consistent and said:
O’BRIEN, MR: …To say that the children’s views were aired in the previous hearing is correct, but the children are two years older. They’re saying, we say, the same thing with greater force…
In argument on appeal, it was submitted for the mother that her Honour quoted with approval Marsden v Winch (2009) 42 Fam LR 1 at [56] in which the Full Court said that, depending on the facts of the case:
…a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied…
It was further argued that the mother’s application for the appointment of a single expert to determine the children’s wishes was an example of a “broader range of process” and her Honour erred in not obtaining such a report before determining whether the requisite degree of change in circumstances had been demonstrated. It was submitted that, without ordering such a report in the context of this case, her Honour was unable to properly consider either the mother’s evidence “at its highest” or the question of whether sufficient circumstantial change has occurred.
For the father it was argued that although it had been conceded for the mother that the application for a single expert was not in proper form, no further amended application or affidavit in support had been filed by the time of the hearing. It was further argued that at no time did counsel for the mother seek that the Magistrate first deal with the application for the appointment of a single expert.
While the submissions of the mother during the procedural hearings were not entirely clear, in our view, it could not be maintained that her Honour was unaware of the mother’s position which was that a single expert’s report on the children’s wishes was central to her argument. So much can be seen from the passages quoted in these reasons. Nor could it be argued that her Honour had not been informed that while, prima facie, it might appear that the mother was raising the same issues as had been raised in earlier hearings, her position before the Magistrate was that the views of the children that they wanted to live with her had persisted unabated and, were being expressed with a new vigour.

If her Honour was to adopt the course agreed, which was to take the mother’s evidence at its highest, she was obliged as part of that to consider the mother’s evidence that the children’s views had been continuously expressed, they were being expressed with new force and she wanted an objective evaluation of those views.
Were it necessary to do so, we would accept the submission of the mother that in not acceding to her application for the appointment of a single expert, her Honour was unable fully to consider the merits of the mother’s application and fell into appealable error.
We accept the argument that nowhere in her Honour’s judgment does she give reasons for dismissing the mother’s application for the appointment of a single expert to assess the children’s views.
The obligation to give reasons is a cornerstone of the judicial process. It is unnecessary to traverse the well known authorities on this point. In this case there are no reasons for her Honour’s apparent rejection of the mother’s application to have a single expert appointed. On this ground alone we would allow the appeal.
We find the challenges in Grounds 1 and 3 of the appeal made out. We propose to remit the question of the children’s residence and the preparation of a single expert’s report to be heard as soon as possible.

Ground 2

Ground 2 asserts:
2. The Learned Magistrate fell into error in having found no changed circumstances, then proceeded to dismiss the wife’s Form 1 application filed 8^th December 2010 including the Form 2 for a report filed on the same date (but not the Form 2 filed 27^th June 2011), but then did not dismiss the proceedings nor the husband’s application and ordered that the husband’s Form 1A response filed 22^nd February 2011 stand as a Form 1 application (Order 2) and the parties file and exchange Minutes of Proposed Orders (Order 5) suggesting that particular circumstances were such as to warrant a change in the orders which was inconsistent with her primary finding.
Ground 2 challenges the process adopted by her Honour after determining that the mother had failed to make good her application for re-consideration of the children’s issues.
In the circumstances of the matter, having found appealable error, we do not propose to consider this ground further other than to say that merely because some change has occurred in the circumstances of children, that of itself would not dictate the conclusion that the threshold point to which the cases speak has been reached.

Application in an Appeal

The mother filed an application in the appeal seeking leave to adduce further evidence. That application was opposed. The proposed evidence related to an instance in early March 2012 in which the children, after spending time with the mother, refused to be returned to the father resulting ultimately in a recovery order being made to return them to the father’s care.
In the circumstances, it is unnecessary for us to consider this application.

Costs

As usual, we asked each party to make submissions as to costs on the appeal. Each party submitted that, if the appeal succeeded, the appropriate order would be to recommend the issue of costs certificates. We consider this an appropriate order to make.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Ainslie-Wallace JJ) delivered on 24 August 2012.

Associate:

Date: 24 August 2012