Jenkins & Anor and Jenkins & Anor
[2011] FamCAFC 69
•6 April 2011
FAMILY COURT OF AUSTRALIA
| JENKINS AND ANOR & JENKINS AND ANOR | [2011] FamCAFC 69 |
| FAMILY LAW - APPEAL – CHILDREN – where consent orders were made in 2008 – where the orders provided for the parties to undertake mediation and placed a restraint on the parties bringing further applications until such mediation had been attempted – appeal from the Federal Magistrate’s dismissal of the maternal grandparents’ subsequent Initiating Application upon application of the principles in Rice and Asplund (1979) FLC 90-725 – whether the Federal Magistrate correctly applied the principles from Rice and Asplund – whether the Federal Magistrate erred in his interpretation of the order restraining further applications and the relevance and effect of this order – no merit in any ground – appeal dismissed. FAMILY LAW - APPEAL – COSTS – whether it was appropriate for the Federal Magistrate to make an order for costs against the maternal grandparents – no merit in ground – appeal dismissed. FAMILY LAW - APPEAL – COSTS OF APPEAL – where the maternal grandparents were wholly unsuccessful – order for costs made. |
| Family Law Act 1975 (Cth) Division 12A of Pt VII, s 60I Family Law Rules 2004 (Cth) r 22.22 |
| B & J [2009] FamCAFC 103 SPS and PLS (2008) FLC 93-363 |
| FIRST APPELLANT: | Mrs Jenkins |
| SECOND APPELLANT: | Mr Jenkins |
| FIRST RESPONDENT: | Ms Jenkins |
| SECOND RESPONDENT: | Mr Turner |
| FILE NUMBER: | AYC | 286 | of | 2007 |
| APPEAL NUMBER: | EA | 34 | of | 2010 |
| DATE DELIVERED: | 6 April 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 27 August 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 February 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 418 |
REPRESENTATION
| COUNSEL FOR THE APPELLANTS: | Mr Nisiforou |
| SOLICITOR FOR THE APPELLANTS: | Peter Dunn & Associates |
| COUNSEL FOR THE RESPONDENTS: | Mr Puckey |
| SOLICITOR FOR THE RESPONDENTS: | Beck Legal |
Orders
The appeal be dismissed.
The appellants pay the respondents’ costs of and incidental to the appeal as agreed, and in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Jenkins and Anor & Jenkins and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: EA 34 of 2010
File Number: AYC 265 of 2007
| Mrs Jenkins |
First Appellant
And
| Mr Jenkins |
Second Appellant
And
| Ms Jenkins |
First Respondent
And
| Mr Turner |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 23 February 2010 Federal Magistrate Dunkley dismissed an application filed by Mrs Jenkins (“the maternal grandmother”) and Mr Jenkins (“the maternal step-grandfather”) (together referred to as “the maternal grandparents”) in which they sought, inter alia, orders that their grandchildren S born in July 2002 and H born in April 2004 (“the children”) spend time with them. The Federal Magistrate also made an order for costs against the maternal grandparents in relation to the application. The maternal grandparents appeal those orders. Although the Notice of Appeal filed on 23 March 2010 formally names both the maternal grandmother and the maternal step-grandfather as appellants, the maternal step-grandfather did not take part in the appeal.
The children’s parents are Ms Jenkins (“the mother”) and Mr Turner (“the father”) (together referred to as “the parents”). They are the respondents to this appeal.
This appeal is being determined by me as a single judge, following a direction by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Background
The Federal Magistrate’s ex tempore reasons contain minimal detail regarding the background of this matter. The following brief background is therefore taken from the parties’ affidavits and documents filed in the Federal Magistrates Court which were before me.
Both the maternal grandmother and the maternal step-grandfather were aged 60 years at the time of the hearing.
The mother was born in November 1975 and was aged 35 years at the time of the hearing. She is the maternal grandmother’s biological daughter.
In approximately 1977 the maternal grandmother commenced a relationship with the maternal step-grandfather.
The mother and father commenced a relationship in approximately 1993. They commenced to live together in 1999.
The mother and father currently live in T, which is located approximately 10 to 15 minutes travelling time outside of E, in central Victoria. The maternal grandparents live in a remote area C in north eastern Victoria, approximately 395 kilometres from T.
The parents’ eldest child S was aged 7 years at the time of the hearing before the Federal Magistrate.
The parents’ child H was aged 6 years at the time of the hearing.
In late April 2004 the mother was informed by her sister that the maternal step-grandfather was not her biological father.
According to the parents, the maternal grandparents have had minimal contact with the children since their birth. Indeed, the maternal grandmother has not seen the children since approximately March 2006.
On 21 June 2007 the maternal grandmother commenced proceedings in the Family Court at Albury seeking orders that the children spend time with her four times per year during school holidays and that she have telephone communication with the children.
On 20 September 2007 the matter was transferred to the Federal Magistrates Court at Bendigo. Interim parenting orders were also made on this date by consent providing for the maternal grandmother to be able to communicate with the children by way of presents, parcels and letters sent to them.
On 31 March 2008 an Independent Children’s Lawyer was appointed to represent the children.
On 25 November 2008 final parenting orders were made by consent by Federal Magistrate Riley. Those orders provided that the maternal grandmother be permitted to send to the children by post presents, parcels and letters, including any video or DVD of the maternal grandmother and that the parties were to participate in mediation though Centacare at Bendigo to “endeavour to resolve their differences”. Such mediation was not to involve the children in any way. All applications were otherwise dismissed. Importantly for the purposes of the orders now under appeal, the following order was made regarding the initiating of further proceedings between the parties:
4. Each party is restrained from bringing any further application concerning the children spending time with or communicating with the Maternal Grandmother and/or Maternal Step Grandfather without first obtaining a certificate from Centacare to the effect that mediation has been attempted for a period of at least twelve months and is no longer appropriate.
In December 2008, shortly after these orders were made, the parents filed an application in the local Magistrates Court seeking an intervention order against the maternal grandmother after she allegedly attended at one of the children’s school the day after the consent order was made. It was also alleged that the parents had received numerous abusive telephone calls from the maternal grandparents.
On 10 December 2008 two interim intervention orders were made in the Bendigo Magistrates Court against the maternal grandmother naming the mother and the children and the father and the children as protected persons. Two orders were also made against the maternal step-grandfather.
On 5 March 2009 final intervention orders were made against the maternal grandmother and the maternal step-grandfather in their absence.
On 18 March 2009 the maternal grandmother filed an application in the Wangaratta Magistrates Court seeking that the intervention orders be revoked. This application was dismissed on 15 April 2009, the maternal grandmother appealed the decision to the County Court, and this appeal was dismissed.
On 29 April 2009 the maternal grandmother received a certificate pursuant to s 60I of the Act from a family dispute resolution practitioner at Centacare indicating that the parties did not attend for family dispute resolution as it was not considered to be appropriate by the practitioner.
In May 2009 the maternal grandmother filed applications in the local Magistrates Court seeking intervention orders against the mother and the father. On 29 May 2009 the mother and father each signed an undertaking not to commit family violence against the maternal grandmother.
The maternal grandparents were subsequently charged with breaching the intervention orders against them by sending cards to and telephoning the children.
On 5 January 2010 the maternal grandparents commenced proceedings in the Federal Magistrates Court at Albury seeking parenting orders. On a final basis, the maternal grandparents sought orders, inter alia, that the children spend time with them during school holidays and be able to communicate with the children, both by way of telephone and by sending them presents, parcels and letters. The maternal grandparents also sought that they be able to spend up to two hours with the children in E upon providing one month’s notice to the parents.
According to the maternal grandmother, in January 2010 the maternal step-grandfather was being treated for cancer and if this treatment was not successful, that he had been given six to twelve months to live.
On 18 February 2010 the parents filed a Response to the maternal grandparents’ Initiating Application. The parents sought orders on a final basis that the Initiating Application be struck out with costs and that the maternal grandparents be restrained from contacting or being within 200 metres of the children’s school. In addition, on an interim basis, the parents sought that if the application was not struck out that the matter be transferred to the Bendigo registry and that an Independent Children’s Lawyer be appointed to represent the children.
The matter came before Federal Magistrate Dunkley on 23 February 2010, when his Honour made orders dismissing the Initiating Application, removing the proceedings from the matters awaiting finalisation and ordered that the maternal grandparents were “jointly and severably [sic] liable” to pay the costs of the parents in the sum of $4,600, with such sum to be paid within 3 months. His Honour delivered brief ex tempore reasons for judgment.
On 23 March 2010 the maternal grandparents filed a Notice of Appeal in the Eastern Appeal Registry.
On 25 May 2010 Boland J made orders by consent transferring the matter to the Southern Appeal Registry.
Reasons for judgment of the Federal Magistrate
The Federal Magistrate commenced his ex tempore reasons by recording that final orders had been made by consent on 25 November 2008 and that these orders “enabled” the maternal grandparents to send letters, presents, gifts, videos and DVDs to the children, and that the parties were to attempt mediation for twelve months before any further application could be brought for parenting orders.
His Honour also recorded that it was “common ground” between the parties that the agency nominated to provide the mediation had declined to take on the role due to the intervention orders that the parties had obtained arising from incidents that occurred shortly after the consent orders were made.
His Honour commented that while “ordinarily” in such circumstances a new order would be made for mediation with a different organisation, the parties had agreed that mediation would be fruitless given the “entrenched position of the parties and the extreme antipathy that the [mother and father] feel towards the grandparents.”
The mother and the father sought that the Federal Magistrate dismiss the maternal grandparents’ Initiating Application having regard to the line of authorities flowing from Rice and Asplund (1979) FLC 90-725. His Honour briefly outlined the principles emanating from that decision.
With reference to what was said in Rice and Asplund, his Honour recorded that the parties had been litigating about the children since June 2007 and that there was no changed circumstance, new factor arising nor any material that had not been previously disclosed. His Honour did not consider that the maternal step-grandfather’s illness met any of the requisite criteria as outlined in Rice and Asplund, nor did the failure of mediation. His Honour said that in 2007 and 2008 the parents were “implacably opposed” to the maternal grandparents spending time with the children and that nothing had changed.
The Federal Magistrate then had regard to the submission of the Independent Children’s Lawyer at the time of the previous final hearing. His Honour recorded that at that time the Independent Children’s Lawyer did not support the maternal grandparents spending time with the children and had submitted in his case outline that it appeared that the benefit to the children of spending time with the maternal grandparents was outweighed by the risk of harm this could cause the children emotionally and psychologically, particularly the impact such time would have on the parents. His Honour concluded that nothing had changed from this summary by the Independent Children’s Lawyer. His Honour reiterated that there was no new evidence, factor or circumstance and that the risk of emotional harm to the children remained – there was “no abatement of that risk” – and that there would continue to be a negative impact on the mother and the father’s parenting capacities.
His Honour thus concluded that it was not for the children’s benefit for the case to be re-litigated and the application would be dismissed.
His Honour then turned to determine an application for costs flowing from the dismissal. His Honour recorded that the maternal grandmother had declined to be involved in the costs application and had left the court after her application had been dismissed and the costs application was raised, but prior to the conclusion of the submissions as to costs.
His Honour recorded that the maternal grandmother said only that she “felt that the application for costs was harassment of her.” His Honour rejected that contention.
His Honour said he knew little about the parties’ financial circumstances, but that it had been “fairly submitted” that the parents were in a more secure or better financial circumstance than the maternal grandmother, although his Honour noted that the maternal grandmother owned her own home.
His Honour recorded that the maternal grandmother had been the subject of previous costs orders for failed litigation in other jurisdictions. His Honour said that while this was not a relevant consideration in determining the costs application, it was a factor that existed and indicated that the maternal grandmother was “aware that failed applications can have cost consequences.”
His Honour took into account that the maternal grandmother had been “given significant notices to the costs”, and indeed that she had been on notice since 27 November 2009, before filing her Initiating Application, that if she brought the proceedings she would be subject to a costs application. His Honour noted that on 15 February 2010, namely just prior to the hearing, the maternal grandmother had again been given notice of a foreshadowed costs application in the event that the application was unsuccessful.
His Honour ultimately found that the maternal grandmother had been wholly unsuccessful in the proceedings. In those circumstances, his Honour ordered that the maternal grandparents pay the parents’ costs assessed at $4,600.
Grounds of appeal
The Notice of Appeal filed on 23 March 2010 contains the following grounds of appeal:
1. That the Federal Magistrates [sic] erred in his decision on the 23 February 2010 to dismiss the Appellant’s application filed in the Albury registry of the Federal Magistrates Court on the 5 January 2010;
2. That the Federal Magistrates [sic] erred in solely relying upon the change of circumstance argument in Rice v Asplund (1979) FLC; [sic]
3. That the Federal Magistrate erred in failing to consider and allow as condition precedent Order 4 of the Orders dated 25 November 2008 restraining the parties from bringing any further application without first obtaining a Section 60I Family Law Act certificate from Centacare to the effect that mediation had been attempted for a period of at least 12 months and where mediation was no longer appropriate;
4. That a Section 60I Family Law Act certificate was obtained from Centacare on the 29 April 2009;
5. That the Federal Magistrate erred in his consequential award of costs against the Appellant;
Leave to appeal is sought in the Notice of Appeal, however, given that this is an appeal against final orders, leave to appeal is not required.
The maternal grandparents seek that the orders of 23 February 2010 be discharged and that the application of 5 January 2010 be re-listed for hearing in the Federal Magistrates Court at Albury.
The mother and father seek that the appeal be dismissed.
Discussion
I pause to observe that the written summary of argument filed on behalf of the maternal grandparents was 25 pages in length. That exceeds by a factor of 150 per cent the allowable length under r 22.22(2) of the Family Law Rules 2004 (Cth). However, I would not mind so much if the content of the summary was all relevant, targeted to the grounds of appeal (as required by r 22.22(2)(a)), and comprehensible. Unfortunately, that was not the case here. The summary is a repetitive, rambling narrative bearing little relationship to the specific issues involved in this appeal. I will elaborate on this as I address those issues.
Fortunately, in the written summary of argument of the parents’ counsel, he succinctly identified the “three core issues” raised by this appeal, namely:
1. Whether the Federal Magistrate correctly applied the principles from Rice and Asplund;
2. The Federal Magistrate’s interpretation of order 4 made on 25 November 2008 and the relevance and effect of this order; and
3. Whether it was appropriate for the Federal Magistrate to order costs against the maternal grandparents.
It is noteworthy that, having seen that summary, counsel for the maternal grandparents, in his oral submissions at the hearing of the appeal, adopted that framework. I thus turn to consider those three issues.
Whether the Federal Magistrate correctly applied the principles from Rice and Asplund (ground 2)
In Rice and Asplund, Evatt CJ, with whom the other members of the Full Court agreed, stated that the Court “… 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.” Her Honour indicated that the Court must be satisfied that “… there is some changed circumstance which would 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.” Her Honour continued at 78,905:
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.
The “rule” in Rice and Asplund has been considered in a number of subsequent decisions, including recently in SPS and PLS (2008) FLC 93-363, Miller & Harrington (2008) FLC 93-383, B & J [2009] FamCAFC 103, Marsden & Winch [2009] FamCAFC 152 and Caracini & Paglietta [2009] FamCAFC 188.
In SPS and PLS Warnick J said with respect to the purpose of the “rule” at 82,452:
56. … in Rice and Asplund, Evatt CJ recognised that a purpose of the rule was to discourage “endless litigation”. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.
…
58. Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
59. If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.
Warnick J summarised the features of the “rule” as follows at 82,451:
48. In my view, reflection on the rule shows that:
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)“Shorthand” statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard. (Emphasis in original)
In Marsden & Winch the Full Court (Bryant CJ, Finn and Cronin JJ) said:
48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J [in SPS and PLS] says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.” (Footnotes omitted)
These are the principles that the Federal Magistrate needed to have regard to, and against which the challenge by the maternal grandparents needs to be considered. However, this was not how the appeal was presented on this issue.
In his written summary of argument, counsel for the maternal grandparents made the following submissions in relation to how the Federal Magistrate applied the principles in Rice and Asplund:
a)The Federal Magistrate erred in “solely relying upon the change of circumstances argument, which derives from Rice v Asplund to dismiss the Application”, or, put another way, his Honour erred “by solely relying upon the ratio and line of cases that stem from Rice v Asplund to dismiss the application.”
I confess that I do not understand that submission, and it was not explained at the hearing of the appeal. The fact of the matter is that this case squarely raised the principles in Rice and Asplund, and the enquiry had to be about whether there were changed circumstances sufficient to require a re-litigation of the question of the children spending time and communicating with the maternal grandparents.
b)The Federal Magistrate failed to recognise that the principles in Rice and Asplund do not impede hearing an application seeking a “small or minor” amendment to the recent final order.
The difficulty with this submission is that the application was not seeking a “small or minor” amendment. It was in fact seeking an order that the children spend more time with the maternal grandparents than was sought in the application that resulted in the previous consent order.
c)The Federal Magistrate failed to apply the important provisions contained in Division 12A of Part VII of the Act such as “the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”.
Unfortunately, I do not understand this submission and particularly the second half thereof. In relation to the needs of the children, that is a relevant consideration, but I have not been taken to anything by counsel for the maternal grandparents that persuades me that the Federal Magistrate did not have appropriate regard to what was in the best interests of the children here.
d)The Federal Magistrate erred in dismissing the application “due to the fact that after proposing consideration of re-ordering mediation, he moved on to accept the Respondent’s argument that mediation was not intended to be a ‘forerunner’ to further litigation”.
Certainly, initially, the Federal Magistrate explored whether mediation should still occur in this case, but, quite properly in my view, his Honour ultimately accepted that it was not appropriate in the circumstances. Indeed, the maternal grandmother conceded during the hearing that further mediation was doomed to fail.
e)That, contrary to the Federal Magistrate’s final decision, the intent of order 2 “was not to be over-ridden by a literal interpretation of order 4”.
In my view this submission has no relevance to the application in this case of the principles emanating from Rice and Asplund. It can only relate to the effect of order 4.
f)“[T]hat parenting orders should be treated in the same way as financial orders” and the Federal Magistrate should not have dismissed the application because his Honour was “bound to look at the ‘embodiment’’ of the consent order made on 25 November 2008.
I find this to be a submission which has no foundation in the legislation or any relevant authority. It demonstrates a decided lack of understanding of family law and the principles that apply where there are children’s issues involved.
g)That “by ‘taking into account whatever agreement might or might not have been reached between the parties…’, [the Federal Magistrate] fell into appellable error because in dismissing the application he went beyond the privity of the Consent Orders and by paying attention to such things as collateral but unrelated proceedings which produce Undertakings, the learned Federal Magistrate took into account the intention, state of mind and actions of the parties that led to mediation eventually not occurring, as a basis of forming the rationale behind his decision to dismiss the Application.” (Footnote omitted)
Again, I have great difficulty in understanding this submission, but doing the best I can, it completely misses the point. The Federal Magistrate dismissed the application because there were no changed circumstances sufficient to warrant a re-litigation of the question of the children spending time and communicating with the maternal grandparents. Why the mediation did not take place was not to the point, and that certainly was not why the application was dismissed.
h)That “had [the Federal Magistrate] literally interpreted Order 4, absent any alleged enquiry into the intention, motivations and state of mind and actions of the parties, then the learned Federal Magistrate could have been receptive to either reordering further mediation as he initially implied, or [the Federal Magistrate] would have treated the Consent Orders of 25 November 2008 as permitting further application and heard the Appellant’s argument in respect to this regarding Children (parenting) orders once a certification occurred.” (Footnote omitted)
Again, this completely misses the point. The application before the Federal Magistrate was not seeking an order for further mediation. Further, the second half of the submission overlooks the need to address the principles in Rice and Asplund.
i)That, “[the Federal Magistrate], in dismissing the Application, in the context of Rice v Asplund, denied the Appellant of [sic] procedural fairness in the sense that the decision was based on irrelevant considerations. This is due to the fact that the learned Federal Magistrate failed to consider and allow the stipulations prescribed by Order 4 of Riley FM’s Orders.”
It was not explained to me what the “irrelevant considerations” were. To repeat, this case squarely raised the need to consider the principles in Rice and Asplund, and that was the extent of the basis for the Federal Magistrate’s decision. If it is suggested that order 4 overrides this requirement, then that is not a submission that I can accept, and I will address that further later in these reasons.
j)By “using the Rice v Asplund argument to dismiss” the application, the Federal Magistrate “overrode the Appellant’s common law rights to bring on a new application and also, … extinguished her rights” under the current order.
This submission is perhaps the high point of the maternal grandparent’s counsel’s apparent lack of understanding of the legislation and the principles that apply. The Act defines when and in what circumstances an application may be made and there is no proper basis for suggesting that outside of the legislation a litigant in family law has a separate and discrete fundamental common law right to bring an application.
Unfortunately, as can be seen, these submissions were of little or no assistance in determining this appeal.
I will not repeat what was said in Rice and Asplund, or in any of the subsequent authorities that I have referred to, but the entire point of the principles emanating from Rice and Asplund and the subsequent authorities is to prevent an application being made by a party where it is not in the best interests of the child or children concerned to re-litigate the issues. The focus of the enquiry is whether there are changed circumstances sufficient to warrant such an application being made.
Although at the hearing of the appeal counsel for the maternal grandparents persisted with some of the extraordinary submissions contained in the written summary of argument, such as that it was not open to the Federal Magistrate to deprive the maternal grandparents of their fundamental common law right to argue their case, at least Mr Nisiforou addressed for the first time whether there were any changed circumstances following the making of the consent orders. In oral submissions he took the Court to four specific matters which he said warranted a fresh hearing in this case.
Firstly, reference was made to the father’s affidavit filed on 18 February 2010 wherein the father deposed that:
28. … [the mother] and I have not provided cards to the children that have been signed from “nanna and granddad” as these are in breach of the current intervention order we have concerning [the maternal step-grandfather].
Counsel submitted that the father has thus admitted that the parents have breached order 1 made by consent on 25 November 2008.
Secondly, counsel for the maternal grandparents referred to paragraph 96 of the mother’s affidavit filed on 18 February 2010 wherein she deposed:
96. … I deny that [S] had a great relationship with either [the maternal grandmother] or [the maternal step-grandfather] as she has only seen them together once in 2003. [The maternal step-grandfather] is referred to as ‘Step-grandfather as this is the appropriate term and I deny that this has been stated to hurt [the maternal step-grandfather].
It was submitted on behalf of the maternal grandparents that the mother is thus now conceding that the maternal grandmother’s husband is referred to as the children’s “step-grandfather”, which was not the mother’s position prior to the orders being made.
Thirdly, counsel for the maternal grandparents highlighted the circumstance, as outlined at paragraph 51 of the maternal grandmother’s affidavit filed on 5 January 2010, that the maternal step-grandfather was having treatment for cancer. Counsel referred the Court to the relevant part of the transcript of the hearing before the Federal Magistrate (at page 16 to 17) where the maternal step-grandfather’s condition was raised and discussed. It was submitted on appeal that while the Federal Magistrate took the maternal step-grandfather’s condition into account, his Honour erred in not finding that this constituted a change in circumstance such as to warrant re-opening the proceedings. It was submitted that it was the “imminence” of the maternal step-grandfather not being around which was the changed circumstance.
Finally, reference was made to the mother’s evidence (contained in her affidavit filed on 18 February 2010) regarding the events and proceedings for intervention orders between the making of the consent orders in 2008 and the February 2010 hearing. It was submitted that these proceedings for intervention orders showed a clear intention by the parties to override the consent orders.
However, even then counsel for the maternal grandparents failed to address the real question. He contended that the Federal Magistrate did not take into account these changed circumstances and that this was tantamount to “quashing” the maternal grandparents’ rights. This submission though is misguided. It is the best interests of the children involved which is the paramount consideration for the court, not any so-called “right” of any party to be able to pursue further litigation.
In any event, it is not apparent to me that the suggested changed circumstances are sufficient to require a re-litigation of the question of the time that the children should spend with the maternal grandparents. It has not been established that the Federal Magistrate erred in concluding that there was no new factor, evidence or circumstance to warrant further litigation. The Federal Magistrate was acutely aware of the nature of the dispute between the parties. His Honour made specific reference to the summary which had been prepared by the Independent Children’s Lawyer at the time the consent orders were made. Counsel for the parents also took me to this document. In the summary, the Independent Children’s Lawyer addressed the relevant s 60CC considerations in light of the facts and circumstances at that time. Having considered the matters addressed by the Independent Children’s Lawyer in that summary, and having regard to the evidence before him and submissions made at the hearing in February 2010, the Federal Magistrate determined that nothing had changed such as to warrant re-litigation and that it was not in the children’s best interests for there to be further litigation. Importantly, the risk of emotional harm to the children remained. The Federal Magistrate also found that the parents were still implacably opposed to the maternal grandparents spending time with the children, as they were in 2007/2008. It is evident from both the reasons and the transcript of the hearing before his Honour that the Federal Magistrate also specifically took into account the maternal step-grandfather’s illness, which the maternal grandmother had highlighted at the hearing, but that he also did not consider that this constituted a sufficient change in circumstance.
In these circumstances I am not persuaded that the Federal Magistrate has erred in applying the principles in Rice and Asplund.
The Federal Magistrate correctly identified the test which he was required to apply in determining whether to permit the maternal grandparents to commence new proceedings. His Honour identified at paragraphs 6 and 7 of his reasons the principles of Rice and Asplund and the matters he was required to take into account. As outlined in Rice and Asplund, and subsequently SPS and PLS, the test can be applied at a preliminary stage of the proceedings, and that is the approach his Honour considered appropriate in this case.
There is therefore no merit in this ground of appeal.
The Federal Magistrate’s interpretation of order 4 made on 25 November 2008 and the relevance and effect of this order (grounds 3 and 4)
Order 4 of the orders made by consent on 25 November 2008 provided as follows:
4. Each party is restrained from bringing any further application concerning the children spending time with or communicating with the Maternal Grandmother and/or Maternal Step Grandfather without first obtaining a certificate from Centacare to the effect that mediation has been attempted for a period of at least twelve months and is no longer appropriate.
Order 2 made on that date provided that the parties were to participate in mediation through Centacare at Bendigo to “endeavour to resolve their differences, such mediation … not to involve the children in any way.”
Put simply, the primary issue here is whether order 4 overrides the principles in Rice and Asplund and allows for an application to be made regardless of the circumstances. A separate issue agitated in the appeal is, in effect, whether mediation must take place before an application can be made.
In relation to the latter issue, at one point it was contended on behalf of the maternal grandparents that order 2 was not intended to be “overridden by” a literal interpretation of order 4. However, at another point it was contended that had the Federal Magistrate literally interpreted order 4 his Honour would have ordered further mediation.
For my part, I cannot see that there is any difficulty about order 4. On its terms it prevents an application as to the children spending time or communicating with the maternal grandparents until a s 60I certificate is obtained that mediation has been attempted for a period of at least 12 months and is no longer appropriate. Here, mediation was attempted, there is a s 60I certificate that it would not be appropriate to conduct the mediation, and 12 months has passed. Thus, prima facie it was open to the maternal grandparents to bring an application in relation to the children.
I also observe that the application was to reopen the issue of direct contact with the children, and there was no application to enforce the order for mediation or to make another order for there to be a further attempt at mediation. Thus, it is not open to the maternal grandparents to suggest that the Federal Magistrate should have considered making such orders. Indeed, and as I have referred to already, the maternal grandmother conceded during the hearing that further mediation was doomed to fail, and thus it would have been pointless to make the order suggested.
I also note that, for some unexplained reason, counsel for the maternal grandparents sought to argue that order 4 was in the nature of a condition precedent in an agreement, and he sought to import and rely upon principles in that regard drawn from the law of contract. Once again, this demonstrates counsel’s lack of understanding of the legislation and the principles that apply, and I disregard this submission.
Turning then to the primary issue and the submissions of counsel for the maternal grandparents. It was ultimately submitted that, as mediation had failed, as evidenced by the s 60I certificate provided by Centacare, the maternal grandparents were “entitled” to make a fresh application to the court. It was submitted that by accepting the submission on behalf of the parents that mediation could not work, the maternal grandparents were denied their common law rights. Counsel for the maternal grandparents contended that as the Federal Magistrate dismissed the maternal grandparents’ application on the basis of the “rule” in Rice and Asplund, that his Honour “overrode” the maternal grandparents’ common law rights to bring a new application and inadvertently extinguished their rights under the consent order to do so. It was submitted that the maternal grandparents are effectively “hamstrung” as they are unable to seek mediation and unable to bring an application before the court.
I have already commented on a similar submission when addressing the first issue in this appeal. However, as submitted by counsel for the parents, the issue of order 4 is a “red herring”. Any application to re-open final parenting orders must be determined according to the principles in Rice and Asplund, as confirmed by more recent decisions such as SPS and PLS. The presence of order 4 cannot avoid that result.
Counsel for the parents took me to the transcript of the hearing before the Federal Magistrate where his Honour initially commented that his Honour did not think that the application could be brought at that time because there had not been compliance with order 4. It was submitted by counsel for the parents that if the Federal Magistrate had maintained this view and dismissed the maternal grandparents’ application on the basis that there had not been compliance with this order, the Federal Magistrate would have been in error. However, I accept that ultimately the Federal Magistrate acceded to the position put by counsel for the parents, namely, that if further mediation were to be ordered, it would be likely that the parties would obtain another certificate and be back where they started. His Honour thus accepted the submission made by counsel for the parents that despite whether or not order 4 had been satisfied, it was still necessary to satisfy the Rice and Asplund requirements. His Honour thus correctly determined the application on the basis of the principles in Rice and Asplund, not compliance or non-compliance with order 4.
It has not been established that the Federal Magistrate erred in any way in his interpretation or consideration of the effect of order 4. Order 4 can, in effect, be seen as placing a further impediment on any party seeking to commence fresh proceedings, namely, that they were required to first attempt to resolve their dispute through mediation for a period of 12 months. Arguably, the effect of this order was to enable at least a 12 month period during which mediation could occur uninterrupted without new proceedings being commenced. However, the fact that the parties may have undertaken mediation and that order 4 had thus been “satisfied” would not “entitle” any party to commence further proceedings in relation to these children. Likewise, the fact that such mediation was unsuccessful or did not occur as it was not considered appropriate would not allow a party to commence proceedings. The applicant, according to the principles in Rice and Asplund, would still be required to establish that there has been a change in circumstance or some new factor such as to warrant further litigation.
There is thus no merit in the maternal grandparents’ complaint in this regard.
Whether it was appropriate for the Federal Magistrate to order costs against the maternal grandparents (ground 5)
Again, the submissions on behalf of the maternal grandparents were difficult to follow. For example, it was submitted that the Federal Magistrate “did not properly rationalise from a costs perspective, once he utilised the Rice v Asplund argument to dismiss what the Respondents were essentially arguing as being unmeritorious litigation, how this would impact upon the Appellant being ‘wholly unsuccessful’ under the criteria of FLA.” (Footnotes omitted) It was suggested, for example, that “if mediation was enforced through the Consent Orders, then the Appellant would not have been ‘wholly unsuccessful’ in her Application”.
Further, it was submitted that the “nexus” between what the maternal grandparents were seeking in their Initiating Application and their “rights” pursuant to the previous consent orders was “too large” to be ignored and that it was wrong to say that the maternal grandparents were “wholly unsuccessful”.
Doing the best that I can to understand these submissions, it seems that what the counsel for the maternal grandparents was attempting to say was that there was merit in the application, that they were justified in bringing the application because of their “rights” under the consent order, and thus, although it was dismissed, it could not be said that they were wholly unsuccessful and the Federal Magistrate was therefore in error in making an order for costs.
I do not consider that there is any merit in this complaint in relation to the costs order made by the Federal Magistrate. The question of costs is a matter within the discretion of the judicial officer. In this case, the Federal Magistrate found that the maternal grandmother had been wholly unsuccessful in the proceedings. There was therefore a justifying circumstance. In circumstances where the maternal grandmother did not take up the opportunity afforded to her by the Federal Magistrate to make submissions in relation to costs and chose to leave the courtroom, the Federal Magistrate was entitled to proceed on the basis of the information before him. His Honour was aware that the parents were in a more secure financial position than the maternal grandmother, although noting that she owned her own home. His Honour took into account that the maternal grandmother was aware that a failed application could have costs consequences and that she was on notice that costs would be sought by the parents if the application was dismissed.
It has not been established that the Federal Magistrate erred in making an order for costs against the maternal grandparents, and there is thus no merit in this ground.
Conclusion
As I have found no merit in any of the maternal grandparents’ complaints, the appeal will accordingly be dismissed.
Costs
At the conclusion of the hearing I sought submissions from the parties in relation to the costs of the appeal.
Counsel for the parents sought an order for costs if the appeal was unsuccessful. Counsel for the parents provided me with a schedule of his clients’ costs. The amount sought according to the family law scale is $11,380.84, consisting of counsel fees of $5,900 and solicitor’s fees of $5,480.84.
Costs were sought against the maternal grandparents on the basis of their appeal being unsuccessful, and in the context of the maternal grandparents’ previous unsuccessful application and the costs ordered against them. While counsel for the parents conceded that the parents were in a stronger financial position than the maternal grandmother, it was contended that the maternal grandmother’s conduct should carry costs consequences. However, ultimately it was the position of counsel that it was not necessary to have regard to the nature of the maternal grandmother’s conduct in determining whether to order costs as it was sufficient that the appeal was wholly unsuccessful.
Counsel for the maternal grandparents opposed an order for costs due to the maternal grandmother’s financial circumstances, and also her financial position compared with that of the parents. In this regard, counsel sought to rely upon the material before the Federal Magistrate at the hearing regarding the maternal grandmother’s financial circumstances.
I accept the submissions of counsel for the parents that there should be an order for costs. The justifying circumstance is that the maternal grandparents have been wholly unsuccessful in the appeal. However, I am not satisfied that it is appropriate to make an order that the maternal grandparents pay the amount of costs sought by the parents. Accordingly, I propose to make an order to the effect that in default of agreement the maternal grandparents pay such costs of and incidental to the appeal as may be assessed.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 April 2011.
Legal Associate:
Date: 6 April 2011
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