JEBBETT & COREY
[2020] FamCA 334
•7 May 2020
FAMILY COURT OF AUSTRALIA
| JEBBETT & COREY | [2020] FamCA 334 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of Decision – Where the mother filed an Application in a Case seeking a review of a Registrar’s decision to list an Application in a Case filed by the mother in August for hearing before a Senior Registrar – Where the mother contended that the August application should be heard by the original trial judge in circumstances where an appeal is pending from the primary parenting order and the refusal of a stay of the primary order – Where there is no statutory requirement that the trial judge hear the matter nor any preventing a Senior Registrar from hearing the matter – Where the application for review is dismissed. FAMILY LAW – CHILDREN – Variation of final order – Where the mother filed an Application in a Case in August 2019 seeking to stay and vary a final parenting order made in May 2019 – Where the Application, in so far as it related to the stay, was dismissed by the trial judge in October 2019 – Where there is no extant application for final orders and the parenting proceedings at first instance are functus officio – Where the mother’s Application in a Case will be treated as an Initiating Application – Where the mother’s application is really an attempt to reargue matters which were considered by the trial judge – Where there has been no change in circumstances since the primary order was made that would warrant the variation sought by the mother – Where the application is dismissed. |
| Family Law Act 1974 (Cth) ss 37A, 65D(2), 69ZQ(1)(a), 97(3) Family Law Rules 2004 (Cth) Ch 2, Pt 18.2, rr 1.08, 1.09, 1.12, 2.01, 5.01 |
| Carriel & Lendrum (2015) FLC 93-640 Doherty & Doherty [2016] FamCAFC 182 Poisat & Poisat(2014) FLC 93-597 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 |
| APPLICANT: | Ms Jebbett |
| RESPONDENT: | Mr Corey |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston |
| FILE NUMBER: | BRC | 9223 | of | 2017 |
| DATE DELIVERED: | 7 May 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 22 and 29 April 2020 |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| SOLICITOR FOR THE RESPONDENT: | Mr Jones, MLDG Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston |
Order made on 22 April 2020
The Application in a Case filed by Ms Jebbett (“the mother”) on 27 February 2020 be dismissed.
The Application in a Case filed by the mother on 30 August 2019 (save for those parts seeking a stay of various paragraphs of the Order made 29 May 2019) be listed for hearing before the Honourable Justice Carew on Wednesday 29 April 2020 at 10.00am.
The mother e-file and e-serve any written submissions (limited to a maximum of 6 pages) by 4.00pm Tuesday 28 April 2020.
The hearing on 29 April 2020 proceed by telephone via Globalmeet.
The respondent and Independent Children’s Lawyer are excused from appearing at the hearing on 29 April 2020 but may do so if they wish.
Order made on 7 May 2020
The balance of the Application in a Case filed by Ms Jebbett (“the mother”) on 30 August 2019 be treated as an Initiating Application and dismissed.
Any fee associated with the filing of the deemed Initiating Application be paid by the mother within 30 days unless the mother is exempt from such payment.
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 Jebbett & Corey 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).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 9223 of 2017
| Ms Jebbett |
Applicant
And
| Mr Corey |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms Jebbett (“the mother”) and Mr Corey (“the father”) are the parents of D, aged 7 years.
On 29 May 2019 a final parenting order (“the primary order”) was made and an appeal by the mother is pending.
On 30 August 2019 the mother filed an Application in a Case (“the August application”) seeking, among other things, a stay of various provisions of the primary order. On 22 October 2019 the application for a stay was dismissed and the balance of the application was referred to a Registrar for mention. An appeal by the mother against the refusal to grant the stay is also pending.
On 20 February 2020 the Registrar listed the August application for hearing before a Senior Registrar on 26 March 2020. The mother filed an Application in a Case on 27 February 2020 (“the review application”) seeking to review the Registrar’s decision and consequently the listing for 26 March 2020 was vacated.
When this matter first came before me on 22 April 2020, I dismissed the mother’s review application and reserved my reasons. The balance of the August application was heard by me on 29 April 2020 and I reserved my decision. The following reasons incorporate those relating to the dismissal of the mother’s review application and the dismissal of the balance of the August application.
Application in a case filed 27 February 2020 – Review of registrar’s decision
The decision under review was the listing of the matter before a Senior Registrar. The mother argued that the matter should be determined by the Judge who heard the trial over nine days spanning 2018/2019.
Section 37A of the Family Law Act 1974 (Cth) (“the Act”) empowers the Judges of the Family Court of Australia, or a majority of them, to make Rules of Court delegating to the Registrars all or any of the powers of the Court and it is not in contention that a decision to list a matter for hearing is an authorised exercise of the powers of a registrar in the management of the business of the Court.
Part 18.2 of the Family Law Rules 2004 (Cth) (“the Rules”) is headed “Review of Decisions” and r 18.07 relevantly provides that:
This Part:
(a)Applies to an application for the review of an order of a …Registrar …;
(b) …
The Dictionary to the Rules defines “order” as follows:
Order includes:
(a)A decree, decision, declaration and judgment; …
(b)…
Rule 18.08(2) of the Rules relevantly provides:
(2) A party may apply for a review of any order or decision made under these Rules by a Registrar … by filing an Application in a Case and a copy of the order or decision appealed from in the filing registry within 28 days after the order or decision is made.
The mother’s review application was filed within the time prescribed.
Rule 18.10 of the Rules sets out the power of the Court on review and in particular:
(1)A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) Any affidavit or exhibit tendered in the first hearing;
(b) Any further affidavit or exhibit;
(c) The transcript (if any) of the first hearing; or
(d)If a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
The only material relied upon by the mother in support of her application to review the Registrar’s decision was the Application in a Case filed 27 February 2020 and two emails received into evidence without objection.
The mother submitted that as the trial judge had firsthand knowledge of all relevant matters, having presided over the parenting trial for nine days, he was best placed to determine the balance of the August application and further, any other judicial officer would necessarily have to become familiar with the case by reading the trial judge’s lengthy reasons for judgment.
In dismissing the review application the following factors were of particular importance:
a)There is no statutory requirement that the balance of the mother’s application be heard by the trial judge;
b)The business of the Court must be able to be managed to ensure the statutory requirements of the Act are met, namely, that proceedings are not protracted (s 97(3)) and that each case is resolved in a just and timely manner at a cost to the parties and to the Court that is reasonable in the circumstances of the case (r 1.08);
c)The August application (or at least a part thereof) was considered by the trial judge when he dismissed the mother’s application for a stay and referred the balance of the August application to the Registrar for mention. It is reasonable to infer that if the trial judge had considered it appropriate to hear the balance of the August application, he would have done so or at least indicated that it should be listed before him at a later date; and
d)There is no impediment (legal or otherwise) to another judicial officer, including a Senior Registrar, hearing and determining the balance of the August application.
In the interests of finalising the balance of the August application and because both the father and independent children’s lawyer (“ICL”) had addressed relevant matters in their written submissions, I indicated to the parties that I would be prepared to hear submissions in relation to the balance of the August application on 22 April 2020. However, in light of the mother’s objection to that course and the fact that only the review application was in fact listed for hearing that day, I adjourned the matter for hearing before myself on 29 April 2020. I adopted this course because I considered that the mother should have a further opportunity to consider her position in light of the written submissions filed by the father and ICL (in particular the reference to the rule/principles in Rice & Asplund (‘Rice & Asplund’)[1]) and to respond to those submissions if she chose to do so.
[1] (1979) FLC 90-725 (‘Rice & Asplund’).
The balance of the Application in a Case filed 30 August 2019
The relief sought in the mother’s August application is in the following terms: (as per original)
1. that:
Orders of Honourable Justice Kent dated 29/ May/ 2019 at points: 2.1 -2.2 , 2.3, 2.4
5, 7.5 & 9, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 23, 24,25, 26, 27, 28, 29, 32, 33, 35, be stayed.
Then orders to be varied to:
Mother have sole parental responsibility without needs to consult with father.
D to be home schooled.
Mother choose the therapy centre.
Address of mother not to be disclosed to the father. the communication between father and child be via email , e-gift-card or via PO, BOX.
In the event the mother was unsuccessful in home schooling D, father to pay costs involved for schooling. School choice be with the mother.
The court order not to be shared with schools or therapist.
order 35 as a whole to be vacated.
As already noted, the trial judge dismissed the mother’s application for a stay.
Can the primary order be varied on the mother’s application?
The parenting proceedings were determined on a final basis in May 2019 and are subject to a pending appeal. The parenting proceedings at first instance are functus officio i.e. at an end. The filing of an Application in a Case to vary the primary order is not a permitted means by which to apply to vary a final order. The correct process is to file a fresh Initiating Application.[2]
[2] Family Law Rules 2004 (Cth) Ch 2, rr 2.01 and 5.01.
However, the Court has power in appropriate circumstances to make such order as considered necessary[3] including dispensing with compliance with the Rules.[4]
[3] Ibid r 1.09.
[4] Ibid r 1.12.
In circumstances where both the father and the ICL supported the Court hearing the balance of the August application, I propose to treat the August application as if it were an Initiating Application properly filed. In the event any filing fee thereby arises the mother will be required to pay it or apply for an exemption.
What variation to the primary order is sought by the mother?
Turning then to consider the balance of the August application, the mother indicated that she now only pressed variation of the primary order in relation to the following matters (taken from the August application):
a)D to be home schooled;
b)Mother choose the therapy centre;
c)The court order not to be shared with schools or therapist; and
d)Order 35.
Material relied upon by mother
The material relied upon by the mother in support of her application comprised the following:
a)Affidavit by the mother filed 30 August 2019;
b)Affidavit by the mother filed in the appeal proceedings NOA102/2019 on 2 March 2020 but in particular the annexed letters from the Department of Child Safety, Youth and Women dated 2 March 2020 and from the Department of Education dated 24 February 2020;
c)Summary of argument for appeal number 54/2019 (the mother submitted the summary addressed matters relevant to the current application);
d)Summary of argument for appeal number 102/2019 (the mother submitted the summary addressed matters relevant to the current application); and
e)Written submissions dated 28 April 2020.
The mother was not permitted to rely upon the following further documents as they either related to pending appeals or to the previous concluded parenting proceedings and/or were of no material relevance:
a)An Application in an Appeal filed 2 March 2020, appeal number NOA102/2019;
b)An affidavit by the mother filed 6 December 2017;
c)Supplementary Appeal Book;
d)List of exhibits from the trial BRC9223/2017;
e)‘Reporting for Registration for Home Education: Report Pack’, unsealed; and
f)Blank template ‘Reporting for Registration for Home Education’, unsealed.
Relevant paragraphs of the primary order which the mother seeks to vary
The mother agrees that the relevant paragraphs of the primary order which she seeks to vary (in effect discharge) are as follows:
[Therapy]
18.The parties shall do all acts and things and sign all documents necessary to facilitate the child’s ongoing attendance upon P Group, as directed by them, for as long as therapeutically indicated, for the child’s occupational therapy, speech therapy, physiotherapy and psychological support.
19. The Mother will comply with all reasonable directions of the employees and agents of P Group, and shall follow all recommendations of the child’s treating professionals at P Group including following advice from the child’s treating practitioners about the priority that ought to be given to the therapies delivered to the child, and including completing any ‘homework’ or engaging in exercises with the child at home.
…
[Schooling]
21. Should the child be assessed as meeting the eligibility criteria for entry into a special school, the Mother and Father do all acts and things and sign all documents necessary, within seven (7) days of becoming aware of the child’s eligibility, to obtain a medical report or specialist opinion confirming that the child is verified to attend a special school because he:
21.1 Has a severe disability as defined by the Disability Discrimination Act 1992 (Cth);
21.2 Has a severe disability which includes an intellectual disability;
21.3 Is unlikely to attain the levels of development of which the person is capable unless the person receives special education;
21.4 The child’s educational program is best delivered in a special school taking into account the appropriateness of his placement.
22. In the event that the parties can obtain verification that the child is able to attend a special school, the parties will do all acts and things and sign all documents necessary, within seven (7) days of obtaining verification, to enrol the child in the O School or the Q School, or a special school in the catchment area in which the child lives.
23. In the event that the Does not meet the eligibility criteria required to attend a special school, the parties do all such things to enrol the child in the V School on a full-time basis.
24. Should the V School be unable to accommodate the child on a full-time basis or five (5) days per week, the Mother be at liberty to home-school the child on the days which the V School is unable to take the child.
25. Should the child be placed on a waiting list for enrolment into the V School pursuant to Order 23 hereof, then within seven (7) days of such placement the parents shall forthwith do all acts and things necessary and sign all necessary documents to enrol the child in W School, or such other State School in the catchment of the Mother’s place of residence from time to time.
26.Within seven (7) days of enrolment at W School, or such other State School in the catchment of the Mother’s place of residence from time to time, the parents will do all acts and things necessary, and sign all necessary documents to assist the child in obtaining support at school and in particular to request the School obtain for the child an Education Adjustment Program, and to that end shall:
26.1 Request an Education Adjustment Program for the child at the enrolment interview and shall bring with them to that interview any reports they have regarding the child’s possible Autism Spectrum Disorder diagnosis and his speech and language delay;
26.2 Complete and sign an Education Adjustment Program (EAP) Consent Form for the School;
26.3 Complete or have completed and submit/ted an Autism Spectrum Verification form;
26.4 Complete or have completed and submit/ted a Speech Language Verification form;
26.5 Take the child to any required assessments to assist in verification;
26.6 Arrange any reports necessary to support an application for an Education Adjustment Program; and
26.7 Complete any other request the School may have to enable them to apply for and obtain verification for an Education Adjustment Program.
27. Should the child be ineligible to attend at either a special school or the V School, the Mother shall do all acts and things required to maintain the child’s enrolment and attendance at W School, or such other State School in the catchment of the Mother’s place of residence from time to time.
28. Once the child is enrolled in school pursuant to these Orders, the parties do all acts and things necessary to ensure the child attends school each school day, except when he is unwell, with such absence to be evidenced by a medical certificate.
…
[Court order shared with therapist and school]
32. Pursuant to section 121 of the Family Law Act 1975 (Cth) the parties are granted leave and directed to provide a copy of Ms J’s report, these Orders and the Reasons for Judgment to P Group, the M Hospital and the child’s treating health care professionals.
33. Pursuant to section 121 of the Family Law Act 1975 (Cth) the parties are granted leave and directed to provide a copy of these Orders to the child’s school/s.
…
[Signing documents]
35. That:
35.1 Each party shall do all acts and things reasonably required by the other including signing or execution of all necessary documents to give effect to these Orders within seven (7) days of being requested in writing to do so;
35.2 If either party refuses or neglects to sign or execute and return a document within seven (7) days of a written request to do so then the Registrar of the Brisbane Registry of the Family Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit on behalf of the requesting party as to the said refusal or neglect;
35.3 The requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar.
Rice & Asplund[5]
[5]Rice & Asplund (n 1).
While the Court has the power to vary a ‘final’ parenting order (s 65D(2) of the Act) in appropriate circumstances, the mother’s application is subject to the hurdle of establishing a significant change in circumstances since the primary order. The Full Court in Rice & Asplund[6] (per Evatt CJ) stated:
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.
[6] Ibid at 78,905–6.
This is what is generally referred to as the ‘rule’ or the ‘principle’ in Rice & Asplund..[7] While the Court is not relieved of its obligation to consider the legislative provisions set out in Part VII of the Act, so far as relevant,[8] “[t]he nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings”.[9] That said, any variation of a parenting order pursuant to s 65D(2) of the Act will necessarily invoke the paramountcy of the best interests of the child and the consideration of such provisions in s 60CC of the Act as are relevant to the determination.[10]
[7]Poisat & Poisat(2014) FLC 93-597 at 79,386 [8].
[8] Ibid at 79,389 [32].
[9] Ibid at 79,389 [34]; See also Carriel & Lendrum (2015) FLC 93-640 at 80,173 [55].
[10]Doherty & Doherty [2016] FamCAFC 182 per Kent J at [64]–[66].
When considering whether or not to vary a final parenting order, two particular public policy matters are also at play: firstly, the need to guard against one judicial officer simply substituting her or his view for that of the original judge; and secondly, the need to have a rule that can be relied upon to discourage endless litigation.[11]
[11] SPS & PLS (2008) FLC 93-363 at 82,452 [56] – [58].
Irrespective of the application of the Rice & Asplund principles, the Court has power to limit the issues that require investigation at trial as set out in s 69ZQ(1)(a) of the Act which provides:
(1) In giving effect to the principles in section 69ZN, the court must:
…
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily;
…
Home schooling
It is apparent from the mother’s submissions that the most significant issue relates to home schooling i.e. she wants to home school the child. This issue was the subject of extensive consideration by the trial judge in his comprehensive reasons for judgment. The trial judge gave further consideration to this issue in his reasons for judgment when dismissing the mother’s application for a stay of various parts of the primary order pending appeal, including parts relating to home schooling.
The mother submits that the trial judge had insufficient evidence before him as to the efficacy of the mother providing home schooling and that the letter from the Department of Education dated 24 February 2020 registering the child for home schooling and the letter from the Department of Child Safety, Youth and Women dated 2 March 2020 stating they have no concerns about the mother home schooling the child, justifies variation of the primary order along with her evidence that the child is resistant to attending school and will be bullied.
The problem for the mother is that the trial judge made clear findings about what he found were the benefits of the child attending school and the detriments for the child being home schooled. (Reasons for Judgment dated 29 May 2019 [237] – [285]) It is perhaps worth quoting particular parts of those reasons which address the mother’s submissions:
280.…attendance at formal or mainstream schooling holds enormous potential benefits for D which home-schooling by his mother does not. Conversely, I accept the evidence of those sources as to the disadvantages to D of home-schooling by his mother. …
…
282. I do not accept that D is at a great risk of bullying in mainstream schooling or that such a risk is in and of itself sufficient to be a reason to deny to D the obvious other benefits of formal education as identified by the various experts in this case.
283.I accept the difficulties of the kind identified by the mother as to D’s resistance to attend at school and to comply in all respects with school rules may very well be encountered. However, in my judgment, relying as I do on the expert evidence in the case, if D is to have any prospect of achieving some level of independence in the longer term, and to find his own way in the world, he needs to now begin the process of relating with his peer group and interacting with individuals, other than his mother and therapists.
284.In my judgment, to consign D to home-schooling by his mother would socially isolate him and limit his outlook and perspectives. I accept that formal education has the advantages for D identified by each of Ms H, Ms J and the other witnesses as earlier discussed, in comparison to home-schooling.
The trial judge reiterated the benefits to the child attending school in his reasons for judgment when dismissing the mother’s application for a stay of the primary order. In particular, his Honour said:
11.In my judgment, there was an overwhelming body of expert evidence supportive of the proposition that D’s interests would be maximised by optimising the opportunities for him to have some socialisation in circumstances particularly where he was to be living with the mother, without spending time with the father, and where his opportunities for socialisation may otherwise be limited.
The trial judge’s decision to require the child to attend school was based to a significant degree on the benefits to the child both short and long term. The fact that the child is registered for home schooling and that there are no concerns expressed by authorities does not detract from the findings made by the trial judge as to what he found were in the best interests of the child and do not warrant variation to the primary order.
Therapy
It is apparent from the trial judge’s reasons why he felt it necessary to make prescriptive orders about the child’s attendance at therapy. For example, his Honour found:
230.That noted, it is clear that there are highly troubling aspects to the mother’s approach to therapy for D. It is clear that the mother has a remarkable capacity to elevate her own views about D’s therapy needs over and above the views of qualified expert therapists. …
231.The mother is noted to have been a very demanding parent and determined to have her way over the views of independent experts. In my judgment that is seriously undermining of the benefits for D of the therapies which he can access. …
232.As already noted, the mother has demonstrated a failure to follow appropriate expert advice.
…
235.… in my judgment when viewed objectively the mother’s approach, to the extent the mother casts aside the opinions of experts in the field, does not maximise D’s potential. To the extent that a failure to optimise D’s potential can be characterised as presenting a risk to D, then such risk exists.
No evidence now relied upon by the mother demonstrates any basis for variation of the primary order in relation to the child’s attendance at therapy.
Provision of primary order to school and therapist
The mother concedes that there is perhaps little utility in pressing her application to vary the order requiring the primary order be provided to the child’s therapists and school when it seems that has already occurred, at least to some extent. Rather, the mother argues that she should not have to provide the primary order to others in the future, in particular, the school attended by the child, as it may cause the child to be treated differently.
No evidence relied upon by the mother persuades me to vary this provision of the primary order.
Signing documents
The mother concedes that the provision relating to the signing of documents is not an issue that has yet arisen. Nevertheless, the mother argues that it is a matter that may arise in the future and she objects to the order.
No evidence relied upon by the mother persuades me to vary this provision of the primary order.
Conclusion
There has been no change in circumstances since the primary order was made that would warrant the variation sought by the mother.
Unfortunately, the mother’s application is really an attempt to reargue the very matters that were determined by the trial judge after a nine day hearing and again when the mother’s application for a stay of the primary order was dismissed.
It might also be observed that repeated attempts to reargue the very matters that are the subject of pending appeals may well be an abuse of process. The mother would be well advised to seek legal advice on the futility of persisting in her approach and the possible cost consequences that may follow.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 7 May 2020.
Associate:
Date: 7.05.2020
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