Gotch & Gotch - [2009] FamCAFC 3

FAMILY COURT OF AUSTRALIA

GOTCH & GOTCH

[2009] FamCAFC 3

FAMILY LAW – APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – Following trial in 2006 the Federal Magistrate made an order allowing the mother to relocate with the children to the USA and for the father to spend holiday time with the children in Australia – In 2008 the Mother applied to have the place of this holiday time changed to the USA both on an interim and a final basis– Father sought that the mother’s applications be dismissed – Mother stated that the children had expressed to her that they did not wish to travel to Australia but that they did want to see the father - Federal Magistrate dismissed the applications finding that no sufficient change in circumstance (Rice v Asplund) existed – Mother appealed this dismissal stating that the Federal Magistrate should have taken her case at its highest but instead conducted a fact finding exercise – The Federal Magistrate’s reasoning was inconsistent with taking the mother’s case at its highest or as established at face value – Treatment of the mother’s evidence of the children’s wishes involved an error in approach or denial of procedural fairness – Appeal allowed – Application for variation on a final basis and application for dismissal remitted – Mother’s application for interim variation dismissed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Appeal allowed – Costs certificates under the Federal Proceedings (Costs) Act 1981 granted to both parties for the appeal

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Miller & Harrington [2008] FamCAFC 150
Rice v Asplund (1979) FLC 90-725

APPELLANT:

Ms GOTCH

RESPONDENT:

Mr GOTCH

APPEAL NUMBER:

2008

FILE NUMBER:

BRC

5979

2007

DATE DELIVERED:	14 January 2009
PLACE DELIVERED:	Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Warnick and O'Ryan JJ

HEARING DATE:

8 December 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 August 2008

LOWER COURT MNC:

[2008] FMCAfam 898

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Nikou SC

SOLICITOR FOR THE APPELLANT:

Berry Family Law

COUNSEL FOR THE RESPONDENT:

Mr Galloway

SOLICITOR FOR THE RESPONDENT:

BM Law

Orders

That the appeal be allowed.
That the orders of 11 August 2008 of the Federal Magistrates Court be set aside.
That the mother’s application for the interim order sought in paragraph 5 of her application filed 30 June 2008 be dismissed.
That, otherwise, the said application and the father’s response filed 6 August 2008 be remitted for rehearing to a Federal Magistrate other than Turner FM.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 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 the appellant mother in relation to the appeal.
That the court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent father in relation to the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 77 of 2008
File Number: BRC5979 of 2007

Ms GOTCH

Appellant

And

Mr GOTCH

Respondent

REASONS FOR JUDGMENT

Following a trial in 2006, Federal Magistrate Baumann made orders entitling the mother to relocate from Australia to the United States of America with her three children, of whom Mr Gotch was the father. Those children are C, born in November 1994, A, born in February 1997 and P, born in July 1998. Provision was made for the father to spend time with the children after the relocation during holiday periods, as to which order 8 provided:
That the father, at his election, may enjoy the contact…in Australia.
In mid-2008 the mother filed an application seeking interim and final orders that would see the father’s time with the children spent in the USA, not Australia.
On 11 August 2008, Federal Magistrate Turner dismissed the mother’s applications for both interim and final variation. He did so, as his reasons disclose, upon application of the principle in Rice v Asplund (1979) FLC 90-725 namely that no sufficient change of circumstance since the 2006 orders had been demonstrated to conduct a further hearing.
Against the dismissal of her application the mother appeals.
The essential argument for the appellant is that the process that Turner FM ought have followed was to take the mother’s material at its highest whereas, at least in one respect, this was not done, but rather, an assessment in the nature of fact finding was undertaken. We commence our consideration of this argument with an outline of the proceedings in the Federal Magistrates Court.
The mother’s application filed 30 June 2008 sought interim orders for the parties to obtain a report by a child psychologist or psychiatrist with regard to the wishes of the children, the advantages and disadvantages of the children spending holiday time with the father in Australia on the one hand and in the USA on the other and that the order for the children to spend time in Australia at the election of the father “be stayed”. By way of final order, the mother sought that the 2006 orders be varied, so that the time spent by the father with the children was in the United States. The father’s response simply sought that the applications by the mother for final orders and interim orders “be dismissed” and costs in each case.
Each of the father and mother filed an affidavit in support of their application or response. The mother’s affidavit addresses the issue of “changes” which had arisen since the 2006 orders. She deposed to the children being tired by the travelling involved in coming to Australia and missing some schooling associated with that and/or the length of time they spent with the father. But, primarily, the change contended for by the mother was as set out in paragraphs 21 and 22 of her affidavit:
21.[The children] have all made it clear to me that they do not want to travel to Australia to visit their father but however they still want to have a relationship with him.
22.The children all wish for their father to come to visit them in the United States of America and they have all expressed to me that this is so the father might be able to see how they lead their lives in the United States of America, who their friends are, what they do and importantly to avoid the children’s tiredness, missing their friends and missing their school and avoiding attendance at their father’s religious organisation.
The mother then set out statements attributed to the children about actions one or more of them had taken, of a rebellious, vandalistic or delinquent nature at the premises where religious activities were carried out.
On the return date of the application written submissions were put before the learned Magistrate. The written submissions continued to refer to the interim order sought by the mother about the country in which the father spend time with the children, as a “stay”. At the hearing this caused some confusion, which carried through even to the documents relating to the appeal, until Ms Nikou SC, senior counsel for the mother on appeal, conceded that the mother’s interim application should have been expressed as an application for suspension or variation. Thus ground “B” in the amended Notice of Appeal was effectively abandoned, leaving only the one ground going to substantive issues.
The submissions on behalf of the mother to the Federal Magistrate were for the most part under the heading “The Rice & Asplund considerations” and included the following:
14.Counsel for the father may impress upon the Court the need to deal with the Rice & Asplund question as a preliminary threshold issue; that it should be determined discreetly and today. Counsel for the father may suggest there is no significant change as the father says he is not aware of assertions made by the mother.
We observe at this point that:
·       Though the response of the father did not indicate that the request for dismissal of the applications of the mother for final and interim orders was to be pursued as a preliminary matter on the first occasion when the case was before the court, whether in response to some communication or merely by anticipation, the legal representative for the mother had prepared to meet such a request in respect of the entire application, at that first hearing;
·       Commonly, on such applications at a preliminary stage, the material of the applicant for variation would be taken at its highest, though other procedures have been followed; and
·       The mother’s submissions to the Federal Magistrate are not limited to what her own material established but referred to content of the father’s material.
In Miller & Harrington [2008] FamCAFC 150 the Full Court of this Court discussed the matter of procedure when an application of the rule in Rice & Asplund is sought. The Court said:
69.This court has used, and continues to use, expressions such as “striking out” and “summarily dismissed” where financial issues are in dispute. (See, eg: Bigg v Suzi (1998) FLC 92-799; Bain Pacific Associations and Ors & Kelly & Ors (2006) FLC 93-270 per Bryant CJ, Warnick and May JJ). In those types of case, principles familiar to the common law are applicable. In particular, the usual approach has been to determine the application by reference to material in the case for the respondent together with any non-contentious facts. (See, eg, Bain Pacific at para 21).
70.In parenting applications, when a party submits an application should not proceed to a full hearing a common approach is exemplified by the discussion in this case in the passages of transcript already set out; in particular references to “dismiss the mother’s application for final parenting orders on a summary basis”, after a hearing “on the papers”.
…
72.It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
…
81.Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
82.However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
83.This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
84.On the other hand, there is authority to suggest that these are not the only legitimate procedures. …
…
91.On a topic that has not been often examined, we think the discussion by Wilson FM a useful one. However, because, as we have said, the topic was not the subject of submissions before us, we do not necessarily express agreement with all that Wilson FM has said nor address further any tension which may exist between those cases which appear to speak of but two choices, either the application of the rule as a preliminary matter taking the applicant’s case at its highest or a full hearing, and those cases that suggest a broader range of process.
In Miller & Harrington, the Full Court concluded that, whatever processes were appropriate in a particular case involving the application of the Rice & Asplund principle, it was essential to procedural fairness that there be a clear understanding by the parties and the court of the nature of the court’s enquiry. The Court in Miller & Harrington said, of the particular matter before it:
95.However, if the parties and Barry J assumed that the matter would be determined on the papers, taking the mother’s case at its highest, Barry J went well beyond that parameter.
96.If some other procedure was proposed, that was never made clear to or by the parties. In our view, it is not possible to say that the proceedings were conducted on a mutually understood basis and there is, as a result, merit in the submission that the mother was not accorded procedural fairness.
To return to the proceedings before Turner FM, on 11 August 2008 Mr Turnbull, the solicitor for the mother, appeared before the Federal Magistrate in Melbourne and Mr Galloway, counsel for the father, appeared by telephone from Brisbane. At the outset, Mr Turnbull indicated his understanding that Mr Galloway would make a submission that the entire application, that is, both in respect of interim and final orders, be dismissed summarily. He said:
Your Honour, I can indicate that as a preliminary matter by consent, if this matters goes beyond today – and my friend will urge upon you that it should be dismissed summarily today. But if it goes beyond today, there is a consent that the matter should be remitted to the Brisbane Registry of the court.
During oral submissions, Mr Turnbull again referred to the father’s affidavit, saying that the father did not deny that the events described in the statements made by the children about their behaviour at church had occurred. Mr Turnbull purported that the father claimed that he didn’t know about such events, so he could not comment on whether they were true or otherwise.
Again, similarly to references in his written submissions, Mr Turnbull mentioned the father’s material, for example referring to differing versions between the mother and father as to why the children missed school on one occasion as “a matter that’s in issue”.
Mr Galloway, in addressing the matter of the “supposed behaviour of the children” submitted that Mr Turnbull was wrong in what he said of the father’s position and that the father did deny that behaviour.
He pointed out that the father had said:
In response to paragraph 29, I swear that I have no knowledge of the children’s behaviour as alleged by the applicant in points (a) to (j) in paragraph 29 and the behavioural problems have not been brought to my attention before, either by the applicant or any other person.
Mr Galloway also took the Federal Magistrate to what the father said of the cause of the missed schooling.
We observe that, up to this stage of the hearing, no one in the courtroom had attempted to describe the procedure on what essentially was the father’s application for dismissal of the entire proceedings instituted by the mother, at that preliminary stage.
Accordingly, one might have expected Mr Galloway to make his submissions first, but Mr Turnbull did. Both counsel referred to the father’s material for unclear purposes, but not consistently with a process in which the mother’s case was taken at face value.
However, as Mr Galloway developed his submissions, he said:
If your Honour was to approach this as the authorities seem to suggest, by looking at this prima facie of the case made to re-open, then one does not see in the wife’s application – that is, particularly in her affidavit with which she supports it – anything that will attract you to consider that was closed out, I respectfully submit, by an order following a two day trial on a relocation issue ought now to be revisited.
And later:
In my submission, what the wife shows you, even prima facie, is nowhere near sufficient to require further litigation.
Mr Turnbull later said:
Your Honour, look, fundamentally this application by us is an application for a stay and it seems to me what the father is attempting to do is to turn it into a Rice v Asplund argument on an interim hearing within the circumscribed time limits we have here and where credit issues can’t be determined. The Rice v Asplund issue, whether its dealt with as a threshold issue or otherwise, isn’t an issue that’s competent really to be ventilated here today. It needs a hearing where the parties are here and where you can observe their evidence and where you can make determinations which are more final in nature.
His Honour said:
All I need to do [sic] decide under the principle of Rice v Asplund is whether there has been a changed circumstance which would warrant the change sought to the order or if there was as circumstance not disclosed at the hearing which may have altered the result.
Mr Turnbull said:
Yes, and our position is that today is not really the right time for that.
There was then some discussion about the nature of the interim orders sought, whether in fact it was a stay or a variation application and comparison of it with the order sought as a final order. Then, Mr Turnbull said:
MR TURNBULL: - - - that the Rice v Asplund argument is an argument for another day. I think the confusion in the court is that the Rice v Asplund argument’s, [sic] probably since day dot, being referred to as a “threshold argument’. That doesn’t mean that it’s necessarily a preliminary argument, that means it’s an argument to be had and something to be considered by the court once all of the evidence is available before it.
HIS HONOUR Yes. Well, it’s either a threshold or a preliminary. The distinction’s rather fine, I think, but - - -
MR TURNBULL: Yes, the court can determine the issue as a preliminary issue, or it can determine it as part of the trial. Now, if it was to determine it as a preliminary issue, your Honour, my submission is that you would be making orders today setting this matter down for a short hearing on that issue and not dealing with it at 5.30 on a duty day. Other than that, your Honour, I don’t think I can assist you.
Mr Galloway responded:
Your Honour, there is a Rice v Asplund argument. Without it, there is no case to run. My friend can’t put the cart before the horse. Unless he persuades you prima facie that he overcomes Rice v Asplund, then he has nothing further to say. In my submission, you can’t have a family report to fish for evidence to see if maybe you can make out a case to overcome Rice v Asplund. You need your case first, otherwise you close out an existing order. That is a principle that not only has long existed in family law, it has long existed in common law. The finality principle is framed in many ways, but all to the same end; that is, cases are determined and they stay determined.
Later, he said:
…She ought to have come before you with a full – and perhaps she has; perhaps this is as good as it gets – a full case that prima facie would persuade that there should be a hearing to determine whether the Rice v Asplund principle is overcome. You may take her application, supported by her affidavit, as as good as it gets, but in my submission it doesn’t get anywhere near good enough to overcome the finality principle. Now, that’s, Your Honour, how I would answer what my friend puts up for you about the order in which you look at the application and interim orders.

Turner FM then said:
HIS HONOUR: Thank you . The issue before the court does involve the principle in Rice v Asplund, which requires that the applicant establish a changed circumstance that warrants the change sought to the orders, or circumstance that was not disclosed at the hearing that may have affected the result. The court finds the applicant has not established such a change. The application filed on 30 June 2008 is dismissed. Mr Galloway, I see in your response you seek costs. [emphasis added]
We think that Mr Galloway accurately stated the common approach, where consideration is given to the principle espoused in Rice and Asplund at a preliminary stage.
Whether Turner FM intended in what he said at the conclusion to act on that basis is less clear, for though he referred to the requirement that the mother establish changed circumstances, he did not expressly say whether she could do so, her material being taken at face value, or whether some other examination or basis might be applied.
We turn to his Honour’s reasons.
On their face, Turner FM’s reasons were delivered on the day of the hearing though the transcript does not indicate that. In his reasons, Federal Magistrate Turner said:
1.The issue before the Court involves what is referred to as the rule in Rice and Asplund (1979) FLC 90–725…
He then addressed the mother’s application for interim orders, quoting passages from the reasons of Federal Magistrate Baumann for the orders, variation of which was sought, and from the mother’s material. From time to time, he also referred to the father’s response to allegations made by the mother, for example, about positions each parent had taken in relation to the children travelling to Australia on particular occasions.
Then he came to the critical question of the evidence of changes since the 2006 orders. He said:
15.Paragraph 21 of the mother’s affidavit states the children have told her they do not wish to travel to Australia to see their father. The father responds in paragraph 11 that the children have never told him that, and that they sound excited when they discuss things to do in Australia.
16.It has not been established that the children do not want to visit Australia. It is for the mother to establish the circumstance.
This allegation does not justify the change sought.
In our view, the process of reasoning described in these two paragraphs is inconsistent with taking the mother’s case at its highest or, put another way, as established at face value.
As earlier seen, the mother plainly stated (her interpretation of) the children’s wishes and the reasons for them. That evidence was central to the mother’s request for variation. The ages of the children, ranging from 10 years to nearly 14 years, are such that a factor to be considered in any assessment of their best interests was that their wishes might well be entitled to considerable weight.
At a trial, the mother’s evidence as to the children’s wishes might not be accepted for the reason that Turner FM gave. But each party would have been able to test the other’s case. Or, as discussed in Miller and Harrington possibly a process might be adopted when considering the application of the Rice and Asplund principle, albeit at a preliminary stage, which permits the determination of some issues of fact. But if that was intended here, there was no forewarning and no discussion of the operation of such a process.
It might be that, even taking the mother’s case at its highest, that is accepting that the wishes of the children and the reasons for them were expressed to the mother as she asserted, that a judge could, for proper reason, find that the evidence did not demonstrate a change sufficient to embark on a full rehearing. But that also is not what Turner FM did here.
We return to the Federal Magistrate’s reasons. At paragraphs 20 and 21, he said:
20.Having regard to some of the alleged conduct, the Court finds that if it was occurring it would have been brought to the father’s attention, for instance “(f) [P] talking rudely in the Sunday School to the teachers” and “(j) [A] betting with other children to do various challenges with are contrary to the teaching of the religious organisations” and “(l) [A] pretending to put money into the offering bag but instead lifting money out of the bag ...”
21.These alleged circumstances do not justify the change sought. If true, the alleged behaviour could warrant the children being disciplined, but should not result in them not spending time with their father in Australia.
In our view, in paragraph 20, the learned Magistrate again embarks on a process of reasoning which leads him to reject the mother’s case on point, rather than take it at face value. However, in this instance, the error may have been effectively rendered of no effect because, in paragraph 21, the learned Magistrate said that, even if the wife’s version of the circumstances was true, the alleged behaviour should not result in the children not spending time with their father in Australia.
However, in our view, because of the treatment of the mother’s evidence of the children’s wishes, there has been an error of approach and/or a denial of procedural fairness, and the appeal ground has merit.

Re-exercise and/or remission

In her summary of argument, Ms Nikou sought that, if we found merit in the appeal, we re-exercise the discretion of the Federal Magistrate to vary the order relating to the country in which contact might be taken as requested by the mother, on an interim basis, and remit the mother’s application for final orders to a Federal Magistrate other than Turner FM.
Neither party sought to put any further evidence in relation to any re-exercise of discretion before us.
Of course, the application which led to the orders appealed was the application of the father for dismissal of the mother’s proceedings for interim and final orders. However, as we have indicated, while the father in his response sought dismissal, there was nothing to indicate that he did so on the basis of a contention that the Rice and Asplund principle should be applied at a preliminary stage. We think that, as a general proposition, parties who wish to make such applications ought to particularise them in writing in responses. In the instant case, as seen, the “presence” of such an application was first articulated orally by the solicitor for the mother, anticipating what counsel for the father would seek.
Nonetheless, we consider that the father’s application for dismissal of the initiating proceedings should be remitted to a Federal Magistrate, other than Federal Magistrate Turner, for rehearing. In relation to the mother’s application for variation of the 2006 orders on a final basis, we are of the view that the order dismissing that application ought be set aside and that application also remitted. This enables a hearing at first instance in which the procedure to be followed, if the father pursues his request for dismissal, can be identified and each party can present his or her case, including submissions, accordingly. It also presents an opportunity for consideration of an order for a Family Report, as an alternative to dismissal at a preliminary stage.
In this regard we note that the 2006 orders provide for the father to spend time with the children at Christmas. If the children are in Australia, this may present an opportunity for interviews for any Family Report to take place here, which we opine would provide the best context in which the children might express any wishes they hold about the location in which they spend time with the father.
As to the interim application for variation, acceptance of the wife’s case as to the children’s wishes and the reasons for them on its face, still leaves the following comments open. There is no identification of the wishes of each child individually; there is no description of the context in which any such wishes were expressed; there is no direct speech. Indeed, the mother’s deposition is an interpretive one:
[The children] have all made it clear to me that they do not want to travel to Australia to visit their father.
In these circumstances, we consider the wife’s case insufficient to justify variation of order 8 of the 2006 orders. It is also insufficient to suspend the operation of the orders, for example, while a Report is prepared. This is a different context to a consideration of whether the mother’s case is sufficient to call for a Report to assist the court in a final determination. We would therefore dismiss the mother’s application for interim variation.

The costs order made by Turner FM

The Federal Magistrate ordered that the mother pay the father’s costs fixed in the sum of $2,200.00.
As we have found substance in the appeal against the dismissal of the application for final orders, the major basis upon which the Federal Magistrate ordered costs, disappears. Accordingly, the costs order ought also be set aside.

Costs of the appeal

The mother sought costs on a certificate under the Federal Proceedings (Costs) Act 1981 (Cth). We consider that we should grant each party a certificate for the appeal.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 14 January 2009