Halloran & Keats
[2023] FedCFamC1A 56
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Halloran & Keats [2023] FedCFamC1A 56
Appeal from: Keats & Halloran [2022] FedCFamC2F 1724 Appeal number(s): NAA 286 of 2022 File number(s): CAC 2603 of 2021 Judgment of: AUSTIN J Date of judgment: 2 May 2023 Catchwords: FAMILY LAW – APPEAL – Parenting – Appeal against the primary judge’s dismissal of the mother’s application to re-open proceedings and vary final consent orders made in 2018 – Where the consent orders give the mother the right to re-open the proceedings and seek variation of the orders regulating the manner in which the children spend time with her, subject to her acquisition of an independent psychiatric assessment – Where there is an anterior question as to the validity of those orders – Where the source of power to make the orders is unclear and, without any source of power, are ultra vires and hence invalid – Where the orders purport to exclude the operation of the principles established by Rice v Asplund under certain conditions – Where the primary judge imposed upon the mother the obligation to demonstrate materially changed circumstances in all respects despite her compliance with the terms of the orders – Procedural unfairness – Erroneous application of legal principles – Appeal allowed – Matter remitted for rehearing – Costs Certificates granted to the appellant and the respondent in respect of the appeal and the re-hearing. Legislation: Family Law Act 1975 (Cth) Pt VII and Pt XIB, ss 45A, 64B, 65D and 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 138 and 143
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.21
Cases cited: Langmeil & Grange [2013] FamCAFC 31
Marriage of Paskandy (2005) 33 Fam LR 509; [2005] FamCA 755
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
Meadows & Meadows (No.5) [2021] FamCAFC 42
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Pencious & Searle (2017) FLC 93-085; [2017] FamCAFC 210
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 48 Date of hearing: 2 May 2023 Place: Sydney Counsel for the Appellant: Mr Duane Solicitor for the Appellant: Farrar Gesini Dunn Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Robinson + McGuinness ORDERS
NAA 286 of 2022
CAC 2603 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HALLORAN
Appellant
AND: MR KEATS
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
2 May 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The Orders made on 15 December 2022 are set aside.
3.Orders 20, 21 and 22 made on 20 June 2018 are set aside.
4.The proceedings are remitted to a different judge of the Federal Circuit and Family Court of Australia (Division 2) to re-hear:
(a)the appellant’s applications within the Amended Initiating Application filed on 23 November 2022; and
(b)the respondent’s applications within the Response to Initiating Application filed on 14 September 2022.
5.The appellant’s application for costs is dismissed.
6.The appellant is granted a costs certificate pursuant to 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 in respect of the costs incurred by her in relation to the appeal.
7.The respondent is granted a costs certificate pursuant to 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 in respect of the costs incurred by him in relation to the appeal.
8.Each party is granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to each party in respect of costs incurred by them in relation to the new hearing granted by these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Halloran & Keats has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
By way of an Amended Notice of Appeal filed on 8 March 2023, the mother appeals from orders made on 15 December 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing her application to revise existing parenting orders and compelling her to pay the father’s costs of successfully resisting her application.
For the following reasons, the appeal is allowed and the proceedings are remitted for re-hearing.
Background
In June 2018, orders were originally made between the parties, with their consent, in respect of their three children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
In effect, the orders provided for the children to live with the father and for him to have sole parental responsibility, but for them to only spend time with the mother under professional supervision and to communicate with her intermittently.
The original orders also purported to regulate the manner in which the parties could revise them, by expressly providing this:
20.That the mother may submit to an independent psychiatric assessment, involving the provision of a written report. In the event she does so she shall ensure the psychiatrist is provided with copies of the reports previously prepared by [other expert witnesses]; the father’s affidavit affirmed 1 June 2018, and the mother’s affidavit affirmed 29 May 2018, and the mother shall make available to the psychiatrist any further material requested by the psychiatrist.
21.The mother must serve a copy of any such psychiatric report on the father by email or by post.
22.Both parties have liberty to apply to vary all Orders except 1, 2, and 10 on one occasion upon the completion of Orders 20 and 21, and this will be the occasion referred to in Notation A.
(Emphasis added)
Those orders were attended by a notation in these terms:
A.That notwithstanding the authority of Rice v Asplund, that once the Mother has complied with Orders 20 to 21, that the parties be at liberty to seek a variation of all Orders except 1, 2, and 10 on one occasion without demonstrating there has been a significant change in circumstances since these Orders were made and neither party shall raise that as a reason the Court should not hear the application.
(Emphasis added)
The references therein to Orders 1, 2 and 10 were to the specific orders which conferred sole parental responsibility for the children upon the father and required them to live with him.
Objectively discerned, the meaning of Orders 20–22 and Notation A is that the mother was free to revive the proceedings in an attempt to vary the original orders (save those governing the children’s residence and parental responsibility), provided only that she first obtains and serves an independent psychiatric assessment. The evident problem created by those orders and the ancillary notation will be exposed in the discussion of the appeal.
About four years later, on 16 August 2022, the mother filed an Initiating Application, by which she sought the wholesale discharge and replacement of the existing orders. She proposed her allocation with sole parental responsibility for the children, their residence with her, and their periodic interaction with the father. Clearly, this was an application which sought to impugn Orders 1, 2 and 10 and so ventured beyond and was not captured by the specific terms of Orders 20–22 and the accompanying Notation A.
The father responded in September 2022, seeking the dismissal of the mother’s application on three alternate bases, those being:
(a)summary dismissal pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) or s 45A(2) of the Act;
(b)dismissal by reason of there being no material change in circumstances (Rice v Asplund (1979) FLC 90-725); or
(c)dismissal for failure to comply with the orders made in June 2018, conditioning the grounds upon which the proceedings may be re-opened.
The mother replied to the father’s response in November 2022, but the reply was superfluous because no new cause of action had been initiated by the father (r 2.21 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
The father’s interlocutory dismissal application was listed for hearing before the primary judge on 24 November 2022.
The day before the hearing, the mother amended her substantive application to include alternate orders as a fall-back position, more cautiously seeking only the relaxation of the tight restrictions under which the children spend time with her. The alternate application fell well within the rubric of Orders 20–22 and the accompanying Notation A, meaning that (according to the orders) she need not demonstrate any changed circumstances to permissibly pursue it.
The hearing before the primary judge proceeded by way of submissions on the underlying evidence. There was no cross-examination of the parties or the psychiatric witness upon whom the mother relied. Judgment was reserved and pronounced several weeks later on 15 December 2022. The mother’s substantive applications were both dismissed as she failed to surmount the hurdle imposed by Rice v Asplund (at [100]–[122]), though the primary judge then proceeded to record how the applications should also be summarily dismissed (at [123]–[131]).
Curiously, the primary judge only ordered the dismissal of the mother’s Initiating Application (filed on 16 August 2022), but not her Amended Initiating Application (filed on 23 November 2022), despite being well aware of the application in its amended form (at [9]). Nevertheless, it is accepted by the parties that the appealed orders were intended to finalise the entire cause – not just to dismiss the mother’s primary application and leave her fall-back application to be determined on the merits at some later time.
The appeal
The judgment is challenged on both procedural and substantive grounds, but they are intertwined and will be discussed in aggregation rather than separately.
The procedural unfairness and erroneous application of legal principle which can be identified in the reasons for judgment both stem from disagreement over the proper construction of the June 2018 orders and the manner in which those orders blocked the mother’s applications.
Orders 20–22, as elaborated by Notation A, made in June 2018 purport to give the mother the right to re-open the proceedings and seek variation of the orders regulating the manner in which the children spend time with her, subject only to her acquisition of an independent psychiatric assessment, without any need for her to demonstrate any material change in circumstances. The orders thereby purport to exclude the operation of the principles established by Rice v Asplund under certain conditions.
In supposed compliance with the orders, the mother obtained and served an independent psychiatric assessment provided by Dr B. Having done so, she was ostensibly thereafter free to re-contest the orders made in June 2018 – at least in so far as the orders constrict the time which the children spend with her. True it is she was not relieved of the burden of having to demonstrate a material change in circumstances if she wanted to vary the fundamental orders governing the children’s residence with the father and his allocation with sole parental responsibility for them, as she indeed did. However, she had an extant application for other more modest orders as a fall-back position, the gist of which was merely to relax the restrictions upon the children’s physical interaction with her. Under the terms of Orders 20–22 made in June 2018, she bore no burden at all to prove changed circumstances to prosecute the fall-back application but, contrarily, the primary judge appears to have imposed upon her the obligation to demonstrate materially changed circumstances in all respects.
The validity of Orders 20–22 made in June 2018 was not questioned in the hearing conducted before the primary judge in November 2022, but an anterior question arises as to the validity of those orders for two reasons. First, the source of power to make the orders is quite unclear and, without any source of power, they are ultra vires and hence invalid. Secondly, the orders are irreconcilable with the guideline legal principles espoused in Rice v Asplund, which principles require the demonstration of materially changed circumstances whenever any application is made under s 65D(2) of the Act to vary existing parenting orders.
Section 64B(2)(g) of the Act defines a parenting order to include one which prescribes the conditions which must be fulfilled before an application is made to change parenting orders. That section provides:
(2) A parenting order may deal with one or more of the following:
…
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
However, the meaning of s 64B(2)(g) is shaped by the provisions of s 64B(4A) of the Act, which provides:
(4A)Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:
(a) resolving any dispute about the terms or operation of the order; or
(b) reaching agreement about changes to be made to the order.
Section 64B(4A) expressly states it does not limit the meaning of s 64B(2)(g) of the Act, but that does not mean the latter sub-section can be read so broadly as to empower the making of any condition imaginable to hinder a litigant’s right to re-contest parenting orders. There must be some proscription on the width of the sub-section, even if its limitations must be implied (Oberlin & Infeld (2021) FLC 94-017 at [38]–[41]).
The exercise of statutory power to make an order either shutting out or restricting a litigant’s right to litigate is serious and must be exercised with due care, as is evident from jurisprudence concerning the analogous exercise of such power under what is now Pt XIB of the Act (Pencious & Searle (2017) FLC 93-085 at [72]–[75]; Marsden & Winch (2013) FLC 93-560 at [126]–[136] and [154]–[158]; Langmeil & Grange [2013] FamCAFC 31 at [23]–[24]; Marriage of Paskandy (2005) 33 Fam LR 509 at [63]).
While Orders 20–22 stipulate the steps the mother must take if she wants to apply to vary the original orders regulating the time which the children spend with her, thereby broadly meeting the requirements of s 64B(2)(g) of the Act, the conditions imposed by the orders are not simply confined to the way in which she must first attempt to mediate the potential dispute before embarking on further litigation, in the manner envisaged by s 64B(4A) of the Act. Rather, the orders require her to obtain an independent psychiatric assessment, which the primary judge interpreted to mean a professional opinion which, of itself, would vindicate the variation application brought by the mother.
In Oberlin & Infeld at [16]–[44], the Full Court discussed the caution with which a judge should contemplate and craft any order which conditions a litigant’s right to bring fresh proceedings under Pt VII of the Act, so as not to stray beyond express or implied statutory power. Those observations are pertinent here.
Whether Orders 20–22 are construed generously to be substantive parenting orders made under s 64B(2)(g) of the Act or more conservatively as being merely procedural orders, it is hardly conceivable they can validly defeat or proscribe the application of established substantive legal principles, such as those promulgated in Rice v Asplund. The orders purport to eliminate the operation of such legal principles in certain circumstances.
Section 65D(2) of the Act expressly envisages the need to vary parenting orders but, whenever any litigant applies to vary a parenting order, he or she must first demonstrate a material change in circumstances to warrant the variation application being entertained (Poisat & Poisat (2014) FLC 93-597 at [13]). Such obligations imposed by law cannot be relieved by an order, whether merely procedural or purportedly made in the guise of a substantive parenting order. Orders are made by courts to fulfil the law, not to undermine or circumvent it.
If Orders 20–22 made in June 2018 were ultra vires, as they appear to be, then the primary judge fell into appealable error by assuming they were valid and by purporting to deploy them to govern the outcome of the dispute in November 2022. The validity of those orders – as distinct from their meaning and effect – was not the express focus of the appeal, but in an appeal by re-hearing, such as this, any identified error must be corrected (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[32]). The father’s counsel commendably conceded the orders were “problematic”.
Conversely, if Orders 20–22 were validly made, the manner in which they were applied by the primary judge to stymie the mother’s dual applications was procedurally unfair because his Honour demanded the mother do that which the June 2018 orders said she need not, contrary to her expectations. To prosecute her fall-back application, which did not seek to disturb Orders 1, 2 or 10 made in June 2018, she need only have procured and served an independent psychiatric assessment, with which obligation she complied, yet the primary judge demanded she demonstrate changed circumstances in just the same way as was necessary to prosecute her primary application to vary Orders 1, 2 and 10. His Honour dismissed the mother’s application compendiously “in each of its iterations” (at [130]).
Yet the terms of the June 2018 orders and the duality of the mother’s amended application was squarely addressed by the mother’s counsel with his Honour during submissions. Counsel submitted that the plain terms of Orders 20–22 only required her to furnish the report of Dr B to enliven her right to re-open the proceedings, except as to the fundamental issues of the children’s residence and the allocation of parental responsibility for them, as follows:
[COUNSEL FOR THE MOTHER]: … Its job is to open the proceedings insofar as that part of the orders is concerned. So its job would not necessarily be to determine any interim arrangement.
(Transcript 24 November 2022, p.11 lines 21–24)
Thinking that the expert evidence of Dr B opened the door to further litigation under the terms of Orders 20–22, the mother sought other procedural orders in her Amended Initiating Application for an updated family report to be procured for use in the re-opened proceedings.
The primary judge and the mother’s counsel then had these exchanges in respect of the manner in which Notation A purported to explicate the June 2018 orders and how they accommodated the mother’s fall-back position:
HIS HONOUR: Sorry. Sorry. Just so that I’m as clear as I can be, are you saying that that’s the mother’s ultimate fallback position?
[COUNSEL FOR THE MOTHER]: Yes.
HIS HONOUR: My words.
[COUNSEL FOR THE MOTHER]: Yes. Well, that’s explicitly so in the amended application. So it’s – in the alternative, it provides for weekend time, as a final order, in circumstances …
…
HIS HONOUR: … Can I just take you, again, back to notation A of the orders? … But I suspect no one at the time that these orders were made, including me, thought that so much attention would be paid to this notation. But be that as it may – would it follow from what you said that – and this was confirmed in response to my question – that, ultimately, the mother’s, as it were, ultimate fallback position is more time with the children. Yes?
…
[COUNSEL FOR THE MOTHER]: …So this order appeared to contemplate that, without having to go through the fuss of having an argument about material change of circumstances, on only one occasion – and provided it’s only talking about the time of the arrangements. So entirely tied to the family report recommendation on which it’s based….the time increases. That’s the context of the order….
…
[COUNSEL FOR THE MOTHER]: the variety of – any other future applications, which would have to meet Rice & Asplund. And, of course, there may be a big change of circumstances. So it’s not – doesn’t read like a restraint on a litigant that is imposed after a next round of litigation. That would be – there – you would have to be looking at the jurisdictional basis for restraint on litigation, as opposed to just a need to satisfy the court. It’s an indication of intention. It’s an indication that it’s not inviting repeated litigation. But it is facilitative of an ability to be let back in to ask for a little bit of time without having a threshold issue.
(Transcript 24 November 2022, p. 12 lines 16–24; p. 14 lines 13, 17–22; p. 15 lines 35–40; p. 15 lines 45 to p. 16 line 5)
(Emphasis added)
There could be little doubt then that the primary judge understood how the mother asserted she was entitled to re-open the proceedings pursuant to the text of Orders 20–22 and Notation A, and just as importantly, how her fall-back position was supposedly governed by those orders and that notation, even though her primary application was not. The observation made by his Honour about too little attention being paid to the orders and the notation when they were originally made in June 2018 is ironically correct.
In the reasons for judgment, by reference to principles of estoppel by conduct, the primary judge spent some time explaining how the June 2018 orders must mean something different to what they actually say (at [77]–[89]). It is unnecessary to discuss that jurisprudential analysis, other than to observe that none of that reasoning was exposed during the hearing for comment by the mother. Nor was it forecast that she would be deprived of the opportunity to procure further expert evidence, which evidence need not have been acquired by her at that point in time if her interpretation of Orders 20–22 was correct. The dispute was determined by his Honour on the erroneous basis that Dr B’s evidence was the only expert evidence upon which the mother would wish to rely to prosecute her variation application.
Correctly, the mother submitted this in the appeal:
46.Hence, the appellant’s confidence that with Dr B’s report in hand, she could apply without proving there had been a significant change in circumstances, at least with respect to spend time with arrangements. It does not follow of course, that the Court would vary the orders on her application. It might hear all of the evidence and determine it was not in the children’s best interests to do so. But, the Court directed, and the parties agreed, that the mother would not have to prove a significant change of circumstances if she complied with orders 20 and 21. And the Court directed, and the parties agreed and thus represented to the Court and to each other, that should such application be made, then the other party may not raise Rice v Asplund as a reason for the Court not to hear the application.
…
50.The purpose of the report was accordingly strictly limited by Orders 20-22 and Notation A. The appellant did not imagine that she had done enough to change the living arrangements substantially by serving Dr B’s report. Nor did she have to. She wished to re-open proceedings, and she relied on the report to do so using the liberty to apply the Court had granted her on clear and simple terms.
51.She sought leave to adduce further expert evidence as to what arrangements would be in the children’s best interests in the form of a single expert report, as required by the Rules. That application was dismissed along with the whole of her Amended Initiating Application. The outcome was accordingly that, even though the appellant had liberty to apply with Dr B’s report in hand, she was denied that liberty, and she was then denied the opportunity to lead single expert evidence in support of her case for a change in the arrangements.
(Mother’s Summary of Argument filed 8 March 2023)
Regardless of the way in which the primary judge chose to construe the June 2018 orders, they were still used to globally dismiss both aspects of the mother’s dual application without differentiation. The primary judge inferentially found Dr B’s report was unsupportive of her primary application, but no separate consideration was either explicitly or implicitly given to whether the evidence was arguably supportive of the mother’s much more modest fall-back position.
An appellate court will not order a new trial if it will inevitably result in the same order being made, so not every departure from the rules of natural justice will entitle the aggrieved party to a new trial (Stead v State GIO (1986) 161 CLR 141 at [9]–[10] and [16]). However, here, it cannot be said that the mother’s fall-back application would inevitably be dismissed if re-heard. Even if she cannot muster the evidence to demonstrate such materially changed circumstances to justify upsetting the orders regulating the children’s current residence and the allocation of their parental responsibility, she still might be able to do so to justify the more modest fall-back application to relax the orders strictly regulating the children’s interaction with her. That is not to say that she will – only that she might.
Orders 20–22 made in June 2018 are most probably not valid parenting orders or injunctions. Nor could they be properly regarded as valid procedural orders. Having admitted they were “problematic”, the father’s counsel did not argue to the contrary. Those orders should be set aside, for otherwise s 138 of the FCFCA Act requires that they be treated as efficacious. The fact those orders were neither appealed at the time nor the subject of this appeal does not preclude their discharge. The power to do so exists in ss 36(1)(b) and 36(5) of the FCFCA Act.
However, Notation A did not form part of the original “judgment” of the primary judge, as it was not an order and its only purpose was to explain the implementation of the operable orders (Oberlin & Infeld at [44]; Meadows & Meadows (No.5) [2021] FamCAFC 42 at [33]–[36]). No statutory power is afforded by s 36 of the FCFCA Act to expunge it but, for abundant clarity, it should not now be regarded as operable or binding in any way.
When the mother’s dual application is re-heard by another judge, as it must be, both aspects of her application to vary the June 2018 orders will be determined according to law – which will entail application of the Rice v Asplund guideline principles, unconstrained by the artificial construct imposed by Orders 20–22 and Notation A.
It is unnecessary to consider the other grounds of appeal as the identified appealable errors require that the appeal be allowed.
Once the dismissal order (Order 1) is successfully challenged, the consequential costs orders (Orders 2, 3 and 4) must also be discharged, as their validity is entirely premised on the validity of the impeached dismissal order.
Disposition
The appeal is allowed.
Upon allowance of the appeal, the mother sought the re-exercise of discretion by the dismissal of the father’s various dismissal applications. The mother envisaged that, having survived the interlocutory dismissal applications in the re-exercise of discretion, her substantive dual applications to vary the June 2018 parenting orders in one way or another could now be remitted for re-hearing. That course is not taken.
Instead, the whole of the proceedings are remitted for re-hearing, which re-hearing will occur in circumstances where the parties are not hindered or distracted by Orders 20–22 and the mother is on notice that she must adduce the evidence upon which she relies to demonstrate the material change in circumstances which justifies either of her substantive dual applications being entertained under Pt VII of the Act. To this point in time, there has not yet been any exercise of discretion within original jurisdiction on those premises.
The mother sought costs against the father in the event the appeal succeeded but, aside from the success of the appeal, no reason was ably advanced for departure from the convention established under s 117(1) of the Act, requiring each party to bear his and her own costs of the proceedings. The costs application is dismissed.
The appeal succeeded due to errors of law. The parties should therefore have costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the re-hearing.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 3 May 2023
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