Hungerford & Tank

Case [2007] FamCA 637

FAMILY COURT OF AUSTRALIA

HUNGERFORD & TANK [2007] FamCA 637

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – With whom a child lives – Orders – Bell J made orders reversing residence of child so that the child lived with the mother – Child had been placed in the father’s care when the mother went overseas – That placement confirmed by order of Collier J made in 2002 -  The father appealed Bell J’s orders on the basis that the trial Judge failed to consider at all, or adequately, certain relevant principles and factors and gave inadequate reasons – Counsel for father and Independent Children’s Lawyer urged that the Full Court re-exercise discretion so that child live with father – Counsel for mother argued that if appeal successful, parenting orders should be remitted for rehearing – Number of impediments to a cogent explanation for ultimate result during course of hearing before Bell J – Rice and Asplund raised with trial Judge but neither conduct of trial nor submissions highlighted whether or not sufficient change of circumstances had taken place for a change to Collier J’s orders – Reasons of Collier J placed before Bell J in the belief of at least one party that conclusions drawn from primary findings of fact in that judgment would be adopted in proceedings before Bell J – Evidence of a counsellor who prepared a Family Report was “shredded”, leaving the trial Judge with minimal, if any, assistance from expert witness – Deficiencies in Bell J’s reasoning include a failure to apply Rice and Asplund principles; a failure to make assessment of mother’s parenting capacity and ability to meet child’s emotional needs; inadequate treatment of effects of a “relocation” of child and an assessment of parties’ proposals in that context; application of Part VII Family Law Act 1975 (Cth) provisions; and assessment of factors underpinning child’s wishes to live with mother - Held on appeal that Bell J’s reasons inadequate – Appeal allowed – Retrial ordered

Family Law Act 1975 (Cth), as amended, Part VII; ss 60B; 60CC(3)(f); 61DA; 64(1)(ba); 64(1)(bb); 65D; 65DAA; 65E; 65F(2)

Federal Proceedings (Costs) Act 1981 (Cth)

B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Goode and Goode (2006) FLC 93-286
Hayman and Hayman (1976) 2 Fam LR 11,558; [1976] FLC 90-140
McManus (1969) 13 FLR 449
Smith and Smith (1994) FLC 92-488

Rice and Asplund (1979) FLC 90-725

APPELLANT: MR HUNGERFORD
RESPONDENT: MS TANK
INDEPENDENT CHILDREN’S LAWYER: MR HODGES
FILE NUMBER: BRF 1072 of 2001
APPEAL NUMBER: NA 89 of 2006
DATE DELIVERED: 29 June 2007
PLACE DELIVERED: BRISBANE
JUDGMENT OF: WARNICK, MAY AND BOLAND JJ
HEARING DATE: 15 May 2007
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 16 October 2006
LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Sayers
SOLICITOR FOR THE APPELLANT: Harrington Family
Lawyers
COUNSEL FOR THE RESPONDENT: Mr Page SC
SOLICITOR FOR THE RESPONDENT: Slade Manwaring Lawyers
INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr…

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AGLC
Hungerford & Tank [2007] FamCA 637
Case
[2007] FamCA 637
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal by the father against orders made by Bell J, which reversed the residence of a child to live with the mother. The child had initially been placed in the father's care when the mother travelled overseas, a placement later confirmed by an order of Collier J in 2002. The father argued that Bell J failed to adequately consider, or consider at all, certain relevant principles and factors, and provided insufficient reasons for the decision.

The central legal issues before the Full Court were whether Bell J had erred in his assessment of the case by failing to apply the principles established in *Rice* and *Asplund*, which govern applications to vary existing parenting orders. Specifically, the court needed to determine if Bell J had adequately considered whether there had been a sufficient change in circumstances since Collier J's orders to justify altering the child's residence. Further issues included whether Bell J had properly assessed the mother's parenting capacity and her ability to meet the child's emotional needs, the impact of the child's relocation, and the child's stated wishes.

The Full Court found that Bell J's reasons were inadequate. The court noted that while the principles of *Rice* and *Asplund* were raised, Bell J did not demonstrate in his reasons that he had applied them, particularly concerning the necessity of establishing a significant change in circumstances. The court also highlighted deficiencies in Bell J's assessment of the mother's parenting capacity, the effects of relocation, and the child's wishes, which appeared to be influenced by the mother. The court concluded that Bell J had failed to address the essential question of whether a sufficient change of circumstances had occurred to warrant altering the existing order.

Consequently, the appeal was allowed, and the orders made by Bell J were set aside. The Full Court ordered a retrial of the parenting proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

And, finally at this point of the trial, the following (relating to B’s wishes at trial in 2002 and at the trial in progress) occurred a little later:MR GEORGE: No. B [sic] was there expressing the same view, the same opinions, but Mr S questioned them very significantly.HIS HONOUR: She was 10 at the time.MR GEORGE: Yes.HIS HONOUR: What is three years; between 10 and 13 in a young girl’s life. Well, I don’t have any evidence of that, Mr Kirk, but – Mr George – but yes, there perhaps will be evidence that there is a vast difference in a 10 year old girl’s attitude to a 13 year old girl’s attitude, particularly in this day and age. (emphasis added) As to the prospect of evidence about the difference between a ten year old girl’s attitude and a thirteen year old girl’s attitude, Dr Sayers informed us, and Mr Page did not say otherwise, that no such evidence was ever given. When Mr George began his address, this exchange occurred:MR GEORGE: Thank you, your Honour. Your Honour, at the outset I’d invite your Honour to consider what changes have there been since the orders were made by Collier J back in 2003.HIS HONOUR: The mother’s had little or no contact.MR GEORGE: The most significant change is the mother’s move to C. In December of 2003 the orders having been made, I think, in April of that year, the mother in pursuit and satisfaction of her own needs, not the children, elects to travel to C with her boyfriend. The evidence as your Honour will recall from both the mother and Mr C before Collier J was that Mr C [sic] proposed selling up in C and travelling to Queensland.… We are satisfied that the question of the application of the “Rice and Asplund approach” was raised before Bell J and that, in any event, his Honour had to apply that approach. Had he done so he would have had close regard to the reasons of Collier J, significant parts of which include:184.… I do not believe the mother when she says that she did not sit outside C’s classroom, nor give her gifts. I do not believe the mother when she says that she has not told the children that if they do not live with her they will not see her again.…247.Mr S went on to say that uncontained destructive adult relationships were most significant imposts on children’s post-separation adjustment in relationships. He, Mr S, has no doubt that this matter contains destructive dynamics, and as a result the children’s attachments are more difficult to ascertain. He is of the view that there are more historic and current indications in Ms Tank’s conduct than her expressed attitudes to suggest that she is the more active parent in exposing C to destructive elements. Mr S makes it clear that in this case it is a matter of looking to the mother’s conduct, rather than what she says, that leads him to the belief that she is involved in exposing C to what he has described as destructive elements. By this I take him to mean that the mother is the one who is seeking to undermine the child in the father’s household, and I accept that this is in fact the situation.…251.I am satisfied that B has expressed a wish to live with her mother and to be reunited with T. I am satisfied that she has expressed this wish to Ms P and Mr S. I accept that she has said this to her mother on a number of occasions. My concern however is that the child has been largely influenced by her mother in relation to the wishes that she has expressed.…252.I am satisfied that the mother has consciously endeavoured to persuade this child that she should express a wish to live with her. Further, I am satisfied that she and Mr C have gone out of their way to involve the child in exciting activities. I am satisfied further that at a more subtle level the mother has made her distress at not having B live with her clear to the child.

Decision

Reasons for decision

In Rice and Asplund, Evatt CJ with whom the other members of the bench agreed said:…Counsel for the appellant relied on the case of McManus (1969) 13 FLR 449. In that case the father applied successfully to vary a consent custody order. The Full Court of the Supreme Court of New South Wales allowed the appeal, finding that the judge, Selby J, had given insufficient weight to the earlier decree, and I quote:“The decision to overturn such decree made with the consent of the father, consent given in the light of the then known circumstances, is one which requires most substantial grounds. A reversal of the decree would require the discharge of a particularly heavy onus on the husband, a criterion not found in the affirmative by his Honour. One would look for new facts and circumstances to be revealed before this onus would be discharged.”…The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.… (emphasis added) In our view, his Honour failed to address the essential question of whether there was a sufficient change of circumstance since the order of Collier J to justify changing the order and thus was in error. Section 60CC of the Act, in relevant parts, provides:(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).Primary considerations (2)The primary considerations are:…(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). Additional considerations (3)Additional considerations are: …(f)the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;

Ratio Decidendi

Legal Principle Established

As to the impact of the change in location of B’s residence from the GC in Queensland to C, Mr R (to what effect on Bell J we don’t know for the reasons already explained) had said:(51) There is no doubt that there is a strong bond between the siblings even if it has been further passively or actively reinforced during the present time and circumstances by the adult conflict.Bell J said:38.As evidence has been given by Mr Yates and Mr Hungerford that the children see each other very frequently, I think almost every week, and they have a close, warm and loving relationship. If, in fact, I accede to the request by the mother that the child go to live with her in C, it could be, of course, that the relationship between L and B will be gravely affected. That is a matter that I take into consideration. (emphasis added)39.I consider that the father and B, as I said, have a loving relationship. And it may be that if, in fact, she moves to C that relationship in itself will be diminished. It will not be destroyed. It could never be destroyed, because as I have already said, St Ignatius Loyola was of the belief “You give me the boy and I give you the man”. Seven years, and that love and respect which has been engendered by the hard work of Mr Hungerford will, of course, remain with the child forever. I would have thought nothing could, unless something very nasty happens, will interfere with that love and respect that she has for her father. (emphasis added)…43.I recognise that there is a difficulty and expense if B goes to live in C because of the tyranny of distance. I also recognise that if L stays in Queensland, as is sought by Mr Yates, that there will expense involved, once again, for the mother having contact with the child. In these paragraphs, his Honour has really done no more than identify factors. Nowhere in his reasons does his Honour evaluate those factors, either individually or more importantly, comparatively. Finally, as to Bell J’s identification and application of the provisions of Part VII of the Act, in early paragraphs of his reasons, Bell J recognised that “the welfare of the children are paramount” and that, apart from B’s views, “[t]here are many other things which I have to take into consideration and which the Court must take into consideration as the Act says”. His Honour also on occasions referred to a matter, such as the preference for the orders that would least likely lead to further proceedings, as one which s 60CC prescribed. Further, Bell J said:30.…And I incorporate, in these, my reasons section 60CC and indicate that I have considered all of them but will, in fact, refer to those matters which I think are completely apposite in this case and are very pertinent insofar as the benefit of the child having a meaningful relationship with both parents, this being a primary consideration. We think such statements are of little or no utility in conveying the reasons for a result. Either all relevant matters are discussed in an appropriate way or they are not.