Godwin & Waddington

Case [2021] FCCA 1467

FEDERAL CIRCUIT COURT OF AUSTRALIA

Godwin & Waddington [2021] FCCA 1467

File number: CAC 2712 of 2020
Judgment of: JUDGE W J NEVILLE
Date of judgment: 30 June 2021
Catchwords: FAMILY LAW – parenting – application to vary final consent orders made in March 2016 – Rice & Asplund consideration – no material change in circumstance to justify re-opening the proceedings – failure of Applicant to disclose two expert reports directly relevant to the application concerning the views of the 12 year old child – application dismissed – costs
Legislation: Family Law Act 1975 (Cth), s 117
Cases cited: Carriel v Lendrum (2015) 53 Fam LR 157
Elmi & Munro [2019] FamCAFC 138
Grace v Grace [2020] FamCAFC 286
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
O’Brien & O’Brien [2017] FamCAFC 219
Penfold v Penfold (1980) 144 CLR 311
Phillips v Hansford (No.2) (2020) 60 Fam LR 160
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725
Shan & Prasad (2020) 61 Fam LR 440
SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Stephens v Stephens (2011) 44 Fam LR 117
Walter & Walter [2016] FamCAFC 56
Number of paragraphs: 35
Date of last submission/s: 28 April 2021
Place: Canberra
Solicitor for the Applicant: Capon & Hubert Lawyers
Solicitor for the Respondent: Parker Coles Curtis

ORDERS

CAC 2712 of 2020
BETWEEN:

MR GODWIN

Applicant
AND:

MS WADDINGTON

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

30 JUNE 2021

THE COURT ORDERS THAT:

1.The Initiating Application filed by the Applicant on 30 November 2020 be dismissed.

2.The Applicant is to pay the Respondent’s costs, either as agreed or taxed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE W J NEVILLE:

Introduction

  1. Adjudication of issues by Courts is founded upon relevant evidence and the application of relevant principle.[1]  The relevant principles in the current matter, which concerns the Father seeking to have the Court re-visit final parenting Orders that were made by consent in March 2016, are well-established and well-known.  An overview of that principle is set out later in these reasons.

    [1] By Orders made on 22nd March 2021, (a) it was noted that the parties agreed that the Application be dealt with by way of material filed and written submissions, and (b) a time-table for the filing of submissions was also made.

  2. As for “relevant evidence” in support of the Application, in my view, this was noticeably and unfortunately lacking.  What was advanced by the Father provided no firm basis for…

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AGLC
Godwin & Waddington [2021] FCCA 1467
Case
[2021] FCCA 1467
Decision Date

CaseChat Overview and Summary

In the matter of *Godwin & Waddington*, heard before W J Neville J, Mr Godwin (the Applicant Father) sought to vary final consent orders made in 2016 concerning their 12-year-old child, X. The Applicant's grounds for variation were that X had matured and was expressing a desire for a simplified schedule and equal time in blocks. Ms Waddington (the Respondent Mother) sought the dismissal of the Application.

The court was required to determine whether the Applicant Father had established a material change in circumstances sufficient to warrant revisiting the final consent orders. Specifically, the court had to consider if the child's increased age and maturity, and his expressed views, constituted a sufficient basis for varying the existing orders, particularly in light of the original orders being made by consent with legal representation for both parties.

Justice Neville dismissed the Applicant Father's application, finding that the child's growth and maturity, being a predictable and known factor at the time the consent orders were made, did not, without more, constitute a material change in circumstances. The court also noted significant omissions in the Applicant's evidence, including the failure to produce expert reports from 2015 and 2019 that dealt with the child's capacities. This lack of independent evidence, coupled with the child's age, meant that the child's views could not be given significant weight. The court applied the long-standing principle that a change in circumstances must be a "relevant" change, and that the mere passage of time and natural maturation of a child, known to all parties at the time of consent orders, is not typically sufficient to justify re-litigation.

The court ordered that the Initiating Application filed by the Applicant on 30 November 2020 be dismissed. Furthermore, the Applicant was ordered to pay the Respondent's costs, to be agreed or taxed.

Orders

Orders of the court

CAC 2712 of 2020

BETWEEN:

MR GODWIN

Applicant

AND:

MS WADDINGTON

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

30 JUNE 2021

THE COURT ORDERS THAT:

1. The Initiating Application filed by the Applicant on 30 November 2020 be dismissed.

2. The Applicant is to pay the Respondent’s costs, either as agreed or taxed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Accordingly, the Application filed on 30th November 2020, must be dismissed. The nature of the Application was such that, in my view, a costs Order must follow in the Respondent Wife’s favour. Having regard to the relatively limited material filed with the Court, and having regard to long-standing principle in cases such as Penfold (by the High Court), and by the Full Court in Stephens, regarding the operation of s.117 of the Family Law Act 1975 (Cth) (“the Act”), the Applicant is to pay the Respondent’s costs, either as agreed or taxed.[2][2] Penfold v Penfold (1980) 144 CLR 311; Stephens v Stephens (2011) 44 Fam LR 117.Background & evidence This matter relates to one child, X, who is 12 years old. Final Orders were made by consent on 23rd March 2016. The Applicant Father now seeks to re-visit those Orders. There are, essentially, only two bases upon which the Application is made. First, the Father says that X is more mature, because he is now older than when the Orders were made. Secondly, the Father contends that X is expressing a desire for a “simplified structure, less back and forwards and equal time in blocks.” Among other things, the Father seeks that there be a report to assess the child’s views. The Respondent Mother seeks that the Applicant Father’s Application be dismissed. In summary, the 23rd March 2016 Orders provide for: (a)The parties to have equal shared parental responsibility for the child;(b)The child to live with the Mother; (c)The child to spend time with the Father during school terms: (d)In week one, from after school Wednesday until before school Friday; and (e)In week two, from after school Friday until before school Monday.(f)The child spend time with the parties during the school term holiday period as agreed in writing between the parties, and failing agreement in the same pattern as during the school term. In my view, there are two fundamental and concerning problems regarding evidence in relation to the Father’s Application. First, one of the two grounds of the Father’s Application is that X is now older and more mature. At the time the Consent Orders were drafted, both parents had (and still have) highly experienced family lawyers acting for them. The Court should be able to rely upon some basic understanding brought to the drafting of consent Orders not the least being that due account will be taken that, like every person, the child the subject of the litigation and the Orders will grow and mature. This self-evident reality of ordinary existence not only should be taken into account in preparing consent Orders but, in my view, absent some medical or other independent evidence, simply growing up is not, and cannot be (without more) a ground to re-visit Final Orders. Growth and maturity, and the ongoing capacity and reality of same, were known at the time the Orders were made in 2016. Accordingly, that reality – known to all (parties and lawyers alike) – cannot, of itself, be considered to be a “relevant change in circumstances.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In addition to these observations, I need only note that the decision in Elmi & Munro, relied upon or referred to by the Father, turned primarily upon the trial Judge undertaking a rather exotic consideration of matters relating to res judicata, and other things, that were far afield from the long-time basal principles set out above. The Full Court decisions in Grace, and later still in Jaynes, turned respectively on the lack of procedural fairness afforded to the Father, and a standard consideration of the above-mentioned principles to the facts before the Court. Accordingly, these decisions do not assist either party in the current matter, one way or the other.Consideration and disposition In light of the principles just outlined, and the facts set out at the commencement of these reasons, I need only note here, quite summarily, the following matters. First, as already noted, as a matter of evidence, the failure by the Father to provide copies of, or even to refer to, the expert reports in 2015 and 2019 that deal with X’s various talents and capacities, was a very significant omission. I do not suggest that it was deliberate. However, in not bringing this material to the attention of the Court, and nonetheless asking that Orders be made that (in the Father’s view) turned heavily on the views of the child, who is still relatively young, was both procedurally irregular (or worse). It was also potentially a form of misleading the Court, simply by the inadvertence or general omission of potentially very crucial evidence. Secondly, putting the same matters in slightly different terms, the omission of the expert reports was, as a matter of procedure, a serious omission or oversight. As a matter of evidence, it placed everyone, but especially the Court, at a singular disadvantage. It could have led to the Court making Orders without a proper, or seriously compromised, evidentiary basis. Indeed, it could have meant that Orders were made erroneously. Thirdly, without the expert reports before the Court, it meant that the Court had no independent evidence against which to weigh the child’s views. As presented by the Father’s seriously limited evidence, X’s views were crucially important. That may be correct, or may have been correct. However, in the light of the expert reports, the child’s views (taken at their highest) cannot be so plainly stated by the Father, or be taken to be as clear and properly formed as suggested by the Father, or otherwise relied upon in the unqualified way suggested by the Father. Moreover, the views of a 12 year old, in any circumstances, would have to be but one matter to consider, in evaluating the Application before the Court. It would generally be a question of how much weight should be ascribed to them. The weight to be given to them in this instance, now in the light of the reports provided by the Mother, must be very heavily circumscribed. Fourthly, as noted earlier in these reasons, the issue of the child’s maturity (and age) are not, without more, anything new in the so-called equation of relevant matters for consideration in the Court evaluating if there has been a “material change in circumstances.” Everyone knew that X would (and has) grown up and matured, again taking into account the expert evidence regarding his capacities and the matters set out in them. Age and maturity, by themselves, do not, without more, constitute a change in circumstances. Everyone knew at the time of the Consent Orders in 2016 that these things would occur. It is not a sudden or new revelation. Whether it was, in fact, taken into account in the consideration and drafting of the 2016 Orders, in the absence of relevant evidence, must necessarily be speculation.