HADAWAY & BECKHAM
[2019] FamCAFC 137
•1 August 2019
FAMILY COURT OF AUSTRALIA
| HADAWAY & BECKHAM | [2019] FamCAFC 137 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Parenting – Where the father appeals against an order made by a Judge of the Federal Circuit Court of Australia dismissing his application to re-open proceedings – Where the father could not establish before the trial judge any material change in circumstances pursuant to the principles in Rice & Asplund (1979) FLC 90-725 (“Rice v Asplund”) – Where the father sought to adduce further evidence – Where proposed evidence not admitted under s 93A(2) of the Family Law Act 1975 (Cth) – Where it was open for the trial judge to find that there was no significant change in circumstances – Where the trial judge correctly applied the principles of Rice & Asplund to the evidence adduced at trial – No appealable error – Where there is no miscarriage of the trial judge’s discretion – Where the appeal lacks merit – Application in an Appeal dismissed – Appeal dismissed – Costs – Where the appeal is wholly unsuccessful – Appellant ordered to pay the respondent’s costs. |
| Family Law Act 1975 (Cth) ss 65DAA(3), 93A(2) Federal Circuit Court Rules 2001 (Cth) r 25B.04 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84 Searson & Searson (2017) FLC 93-788; [2017] FamCAFC 119 SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16 |
| APPELLANT: | Mr Hadaway |
| RESPONDENT: | Ms Beckham |
| FILE NUMBER: | BRC | 7341 | of | 2015 |
| APPEAL NUMBER: | NOA | 121 | of | 2018 |
| DATE DELIVERED: | 1 August 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Austin JJ |
| HEARING DATE: | 1 August 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 December 2018 |
| LOWER COURT MNC: | [2018] FCCA 3681 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hackett |
| SOLICITOR FOR THE APPELLANT: | PPCS Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr J Brasch QC |
| SOLICITOR FOR THE RESPONDENT: | Damien Greer Lawyers |
Orders
The Application in an Appeal filed on 17 July 2019 is dismissed.
The Response to an Application in an Appeal filed on 24 July 2019 is dismissed.
The appeal against the orders of a Judge of the Federal Circuit Court made on 14 December 2018 is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $16,369.51.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hadaway & Beckham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 121 of 2018
File Number: BRC 7341 of 2015
| Mr Hadaway |
Appellant
And
| Ms Beckham |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Austin J
On 11 April 2016, a judge of the Federal Circuit Court of Australia made orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) between the appellant father and the respondent mother in respect of their only child, who was then nearly three years of age. The orders were made with the parties’ consent and provided for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father under an escalating regime of contact, culminating in what readily meets the description of “substantial and significant time” under s 65DAA(3) of the Act. At the time, the mother lived with the child in Brisbane and the father lived in Location A, as is still the case.
Nearly two years later, in February 2018, the father commenced fresh proceedings seeking to set aside the consent orders and replace them with orders providing for a quite different regime: either for the child to live with the parties for equal time, if the mother chooses to relocate closer to Location A or alternatively, if she chooses to remain in Brisbane, reversal of the current arrangement so the child would then live with him instead and spend much the same amount of time with the mother.
The mother opposed the father’s application and contended there was no material change in circumstances to warrant any revision of the orders made in April 2016 and so the father’s application should be dismissed, consonantly with established principles (see Rice & Asplund (1979) FLC 90-725). Given the mother’s position, the parties agreed the trial judge should make a “preliminary determination” on the state of the filed evidence as to whether or not the father had established any material change in circumstances to justify the litigation being re-opened. The trial judge acceded to the parties’ request and, by order made on 14 December 2018, dismissed the father’s application after finding he had failed to establish any significant change in circumstances (at [57]).
By Notice of Appeal filed on 20 December 2018, the father appealed that order.
Application in an appeal
The father filed an Application in an Appeal on 17 July 2019 seeking to adduce in the appeal the evidence set out in his accompanying affidavit. In summary, the evidence comprised instances of the mother’s failure to communicate in relation to the child and alleged breaches of existing orders, which the father contended vindicated his dissatisfaction with the suitability of the orders and helped demonstrate the need for their reconsideration.
The mother filed a Response to an Application in an Appeal on 24 July 2019 resisting the father’s application, which resistance was well-founded. The proposed evidence would not likely have produced a different result at trial and did not tend to demonstrate the appealed order was erroneous, so it should not be admitted under s 93A(2) of the Act to obliterate the distinction between original and appellate jurisdiction (see CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 201, 202, 217, 218).
The trial judge heard the dispute in May 2018 and judgment was reserved until the appealed order was pronounced on 14 December 2018. Some of the evidence the father wanted to adduce in the appeal related to events in the period between May and December 2018, which he contended demonstrates the parties’ inability to effectively share parental responsibility for the child, but he did not apply to re-open the evidence before the trial judge when he could and should have if he perceived the evidence to be so important to the result. In reality, that evidence was not integral to either the trial judge’s decision or this appeal, because even if assumed to be true, it could not have influenced the outcome of the underlying dispute at trial since the father did not seek to disturb the order vesting the parties with equal shared parental responsibility. His application before the trial judge only sought to adjust the arrangements pertaining to the child’s residence and his interaction with the mother if the child instead lives primarily with the father.
Otherwise, the father asserted various instances of the mother’s failure to make the child available to either spend time or communicate with him. However, the father filed an Application-Contravention against the mother on 10 April 2019 for the alleged breach of parenting orders, which application is still pending. It is listed before the Registrar for further directions in October 2019. The mother deposed she is defending the application and so, while she refutes the father’s allegations of her contraventions of the existing orders without reasonable excuse, she currently declines to depose to the particulars of her defence, since r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) does not require her to do so until after the father’s evidence is first tested at trial.
The father demonstrated, by filing the contravention application some four months after the appeal, how he considers his remedy for the mother’s alleged contraventions lies within Part VII Division 13A of the Act; not by filing fresh and controversial evidence in the appeal. Whilst ever the father’s contravention application remains pending as a separate cause of action, the mother is entitled to defend it cautiously and not be drawn into factual dispute in the appeal about the circumstances of the alleged breaches. Regardless, the father’s evidence about the mother’s alleged breaches is plainly controversial and the Full Court is not the venue for such controversy to be resolved, so reception of the evidence would not aid the adjudication of the appeal. That the evidence is contentious is another reason for its rejection (see CDJ v VAJ at 203).
The father’s Application in an Appeal should be dismissed and as a consequence of which so should the mother’s Response to the Application in an Appeal, as was foreshadowed during the oral argument.
The appeal
The father’s appeal comprised two grounds, though they were really the same point expressed differently. He contended that the failure to find any material change in circumstances amounted to either an error (Ground 1) or a miscarriage of the trial judge’s discretion (Ground 2).
The essential question in the appeal is whether it was open for the trial judge to find, on the available evidence, the father failed to demonstrate any material change in circumstances in the period between April 2016 and December 2018 so as to justify the dismissal of his application for the variation of the existing orders without an orthodox defended hearing of the parties’ competing proposals. If the finding was open, the appeal must fail (see Norbis v Norbis (1986) 161 CLR 513 at 539-540; Gronow v Gronow (1979) 144 CLR 513 at 519-520).
It is useful to record at the outset that the parties accept the trial judge correctly identified the applicable legal principles. Their dispute was contained to the way in which those principles were applied to the evidence they adduced.
The father’s case was that, between the orders made in April 2016 and the preliminary hearing in May 2018, circumstances had materially changed in three discrete respects:
a)The change in the father’s residential circumstances;
b)The change in the father’s place of employment; and
c)The tension between the parties, which made their exercise of equal shared parental responsibility more difficult than before.
Although trite, it is worthwhile making clear that the father needed to demonstrate not just that there had been a change in circumstances, but that the change was sufficiently significant to warrant revision of the existing orders in any particular way (see SPS and PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 at [48]).
Before turning to the arguments raised both at trial and in the appeal it is necessary to mention a point belatedly raised by the father in the appeal. He contended his application before the trial judge included proposed orders which would vest him with the unilateral power to procure a passport for and to travel internationally with the child and so the dismissal of his application entailed no attention to the application for those discrete orders nor the evidence of changed circumstances upon which they were premised. Understandably, the mother objected to the matter being raised for the first time in the appeal. In fact, the father was impelled to admit he did not even address the issue directly at the trial. In the circumstances, it cannot be raised now in the appeal (see Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
Father’s residential circumstances
At the time the orders were first made in April 2016, the father was in a romantic relationship with Ms B but, by the time of the preliminary hearing in May 2018, the father and Ms B were cohabiting with her three children and she was pregnant with the father’s child. The child enjoyed a warm relationship with Ms B’s children, and Ms B had made arrangements to synchronise their regular visits with their non-residential parent so that whenever the child spent time with the father in their household all of the children would be together.
The father’s case was that, in April 2016, his relationship with Ms B was “in its infancy and evolution phase” but, by May 2018, he had re-partnered with Ms B and their relationship was “significantly different” (at [30]). The trial judge well appreciated the nature of the argument mounted by the father and the evidence upon which he relied to vindicate it (at [30]-[31]). Similarly, the trial judge appreciated the countervailing arguments of the mother, based on the same evidence, which led her to submit that the father’s formation of a new residential relationship with Ms B and her children was just part of the “normal exigencies of life” (at [48]-[50]).
The trial judge acceded to the mother’s submission and found:
55.The evolution of the father’s relationship with [Ms B] is not, in my view, a change that could be considered sufficiently significant to warrant a re-opening of the litigation…
No aspect of the evidence foreclosed the trial judge’s finding. It was well open. The father’s residential circumstances had changed, but not in such a way as to persuade the trial judge the change was “sufficiently significant to warrant a re-opening of the litigation” (at [55]). The trial judge’s conclusion was not “plainly wrong and contrary to the evidence”, as the father submitted. Instead, as the mother submitted, it would be a surprising outcome if parenting orders were liable to be re-litigated every time one parent falls into or out of a new romantic relationship. If that were so, any attempt to imbue orders under Part VII of the Act with lasting effect would be virtually futile.
The mere fact the father perceived his change of residential circumstances was considered material in another case to which he referred (Searson & Searson (2017) FLC 93-788 (“Searson”)) did not necessarily mean the change was material in this particular case. The mother cogently distinguished several other factual features from Searson: here, the April 2016 orders were made while the parties were already living in different cities, neither parent was seeking to relocate further away from the other, there was no contest over the parties’ respective parenting capacity, and there was no issue about their respective financial capacity to maintain compliance with the existing orders. Those were all factors which diminished the force of the argument about changed circumstances and the submission that this case was on all fours with Searson.
The father emphasised how the child would need to spend less time at day-care if he could spend more time with him, or at least with Ms B within their household if he was at work, but that did not take the debate much further. During the parties’ relationship, they both worked and employed a nanny several days each week to help care for the child. Upon their separation in December 2014, the child instead commenced attendance at day-care and so that arrangement was in place when the orders were made in April 2016. Although Ms B may be available on a full-time basis within the father’s home to care for the child, her availability for the child during school days is not to the point because the parties accepted the child would start school at the beginning of 2019.
Father’s place of employment
At the time the orders were made in April 2016, the father worked in Location E. However, afterwards he ceased working in that area and began operating a business from Location G. The extra distance between the father’s new workplace and the child’s day-care centre caused the father to spend more time travelling to retrieve and return the child in Brisbane, which he contended amounted to a material change of circumstances. The existing orders provide that the child’s day-care centre (and eventually his school) is the changeover venue during academic terms. Again, that evidence and the father’s argument was accurately summarised by the trial judge (at [32]-[33]).
The mother emphasised how the father’s residence in Location A remained unchanged and, while there may have been more driving for the father between his new workplace and the changeover venue, there was no extra driving time involved for the child. She also asserted, and it seems uncontroversial, that the father collected and returned the child on alternate weekends, but Ms B did so for the Monday night visits in the intervening weeks (at [45]).
In assessing the parties’ competing arguments, the trial judge rationalised:
54.I accept the submissions made by the mother that the father’s change of employment base from [Location E] to [Location G] is not a significant change. In making the decision to relocate his business the father could have taken into account the impact such a move would have on his ability to spend time with the child.
The father submitted the second sentence of paragraph 54 illustrates how the trial judge apportioned blame to him for the predicament and thereby took into account an irrelevant consideration, but the submission is rejected. The subject sentence is no more than a statement of objective fact, observing that the change relied upon by the father was one created by him, but without any attendant criticism or attribution of blame. The way in which a change of circumstances arises is logically capable of influencing the decision about whether the change is sufficiently material to justify fresh litigation under Part VII of the Act.
The parties both live in the same homes they occupied at the time the April 2016 orders were made and it was common ground the child is thriving under the existing orders. Some extra fortnightly travel incurred by the father by reason only of the voluntary change in the locality of his workplace did not demand a contrary finding to the one made by the trial judge. The father’s submission that the trial judge’s finding is “plainly wrong and contrary to [the] evidence” is rejected.
The exercise of equal shared parental responsibility
The April 2016 orders vested the parties with equal shared parental responsibility for the child. That was an order both parties wanted made, even though the tenor of their communication at the time was the subject of complaint by the father.
The father deposed in 2015 that their communication had been “strained” and, in his view, the mother made decisions about the child’s parenting arrangements which were “designed to upset [him] and to assert some control or influence over [him]”. In 2016, the father even deposed he endured the mother’s “uncontrollable fits of rage and…verbal and physical assaults”. The father must have been cognisant of such evidence before he petitioned the Court to make the final parenting orders in April 2016 providing for him to share parental responsibility with the mother and for the child to live with her.
By the time of the preliminary hearing in May 2018, the father contended the parental relationship was “broken down”, “dysfunctional” and “almost non-existent”, which contention the trial judge acknowledged (at [35]). The father exemplified his argument with instances of the mother failing to respond to his communication about the child, her propensity to make unilateral decisions about the child, such as when and where he will attend school, and her general exertion of control over the child, which evidence the trial judge also recited (at [36]-[39]).
One of the father’s complaints was that the mother rebuffed his desire for the child to start school in 2018, but at the commencement of the 2018 academic year the child was only 4 years and 7 months old. By the time of the preliminary hearing in May 2018, the parties accepted the child would start school in 2019, as the mother preferred.
Another of the father’s complaints was the mother’s refusal to accede to his request for the child to attend a particular private school in Location G when he commences Year 5 but, since that will be years hence, their present disagreement over that issue was of no real consequence.
On the strength of some correspondence between the parties, which was tendered in evidence, the trial judge found:
41.…The email communications between the parties are a bitter exchange about many of the issues I have discussed in the father’s case. The communication between the parties could only be described as poor and highly conflictual. The parties appear to not be able to agree on a single issue and appear more fixated on their own dispute rather than resolving issues for [the child]. The majority of their communication is consumed by making allegations of misconduct and breaches of the orders against the other.
However, having accepted that the parties remained beset by conflict, the trial judge found:
56.The father complained, with some justification, about the dysfunctional communication between the parties. This though has been a hallmark of the post separation relationship which pre-dated the consent orders. I do not consider this to be a change of circumstance albeit an ongoing problem for these parents in the exercise of their parenting.
The trial judge remarked how the father had not sought any specific order to resolve the parties’ impasse over which school the child should eventually attend, nor filed any application to prosecute the mother for her alleged contravention of orders (at [57]). In fact, the father’s application to re-agitate the parenting orders then under consideration by the trial judge actually sought a fresh order conferring the parties with equal shared parental responsibility for the child. Therefore, if his application was granted in the terms he sought, the various matters which were the subject of his complaint before the trial judge would not have been rectified or even improved, in which case his complaint was pointless. Unsurprisingly, the trial judge concluded:
57. …Given the father has not sought an order in relation to the child’s school or a change in the order for parental responsibility I am not satisfied that the issues in relation to decision making amount to a significant change in circumstances.
Given the state of the evidence, that finding was surely open to the trial judge.
The father submitted that the trial judge only addressed his complaint about the parties’ poor communication and not all of the other evidence he adduced, but the submission is rejected. The father’s underlying grievance was with the mother exerting primary control over the child and not engaging with him in relation to decisions which fall within the province of their equal shared parental responsibility for the child. His complaint about the parties’ inability to share responsibility for the child was squarely addressed by the trial judge’s reasons, even if the father was dissatisfied with the conclusions reached by his Honour.
The father’s submissions sprang from the false premise that the “breakdown” in the parties’ parenting relationship was a material change in circumstances since April 2016. The reality is that their relationship was always vexed and their current conflict is no, or at least little, worse than it was before. Despite that situation, the parties jointly considered their conferral with equal shared parental responsibility was appropriate in 2016 and, by implication, the judge who made the order must have been satisfied at the time it would serve the child’s best interests, otherwise it would not have been made.
Examples of the parties’ ability to effectively compromise were revealed by the evidence. They agreed upon interim orders in April 2018 to rectify a perceived lacuna in the April 2016 orders about who, aside from the father, could collect the child from day-care. The parties also agreed to re-calibrate the weekends the child would spend with the father to align with the weekends Ms B’s children would be present in their home.
To the parties’ credit, their conflict is not apparent to the child. They effectively shield him from it. They accept the child is a “very happy, energetic, dynamic, social young boy” who enjoys loving relationships with the mother, the father, and the other members of the father’s household.
Aggregation of circumstances
The trial judge did not omit to consider the cumulative effect of the changes in circumstances alleged by the father. His Honour concluded his reasons as follows:
58.When I consider the above matters and accepting the father’s evidence at its highest I am not satisfied he has established any significant change of circumstances. Therefore I cannot be satisfied that it would be in the child’s best interests for a new hearing in this matter. I will therefore dismiss his application.
The finding was well open on the evidence.
Conclusion
In my view, the appeal should be dismissed for lack of merit.
I propose that orders be made in the following terms:
1.The Application in an Appeal filed on 17 July 2019 is dismissed.
2.The Response to an Application in an Appeal filed on 24 July 2019 is dismissed.
3.The appeal is dismissed.
Ryan J
I agree with Justice Austin’s reasons and the orders proposed by him.
Ainslie-wallace J
I too agree with the reasons.
Therefore, the orders of the Court will be:
1.The Application in an Appeal filed 17 July 2019 is dismissed.
2.The Response to an Application in an Appeal filed on 24 July 2019 is dismissed.
3.The appeal against the orders of a Federal Circuit Court Judge made on 14 December 2018 is dismissed.
It is in my view appropriate, the appeal having been wholly unsuccessful and taking into account the respective apparent financial capacities of the parties, apparent from what they do and there being no argument from the husband’s side that he could not afford such a figure, I would propose to make an order for costs in the amount of $16,369.51.
Ryan J
I agree.
Austin J
I agree with the presiding judge.
Ainslie-wallace J
Then the final order of the Court will be:
4. The appellant pay the respondent’s costs of and incidental to the appeal in the fixed sum of $16,369.51.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Austin JJ) delivered on 1 August 2019, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 15 August 2019
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