Kelly & Otto
[2022] FedCFamC1A 144
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Kelly & Otto [2022] FedCFamC1A 144
Appeal from: Kelly & Otto [2022] FedCFamC2F 442 Appeal number(s): NAA 89 of 2022 File number(s): ADC 1529 of 2013 Judgment of: AUSTIN J Date of judgment: 13 September 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Principle in Rice and Asplund (1979) FLC 90-725 – Where the father appeals from the dismissal of his application for revised parenting orders – Application in an Appeal – Adduce Further Evidence – Where the utility of the further evidence in advancing the grounds of appeal was not demonstrated – Application dismissed –Allegations of denial of natural justice – Whether the primary judge failed to take material considerations into account – Children’s views – Whether the primary judge made an error of law – No error identified – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 11F, 62G, 65DAC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.01, 2.21, 12.27, 13.39
Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
House v The King (1936) 55 CLR 499
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Searson & Searson (2017) FLC 93-788; [2017] FamCAFC 119
SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 163
Number of paragraphs: 72 Date of hearing: 7 September 2022 Place: Newcastle (via video link) The Appellant: Self-represented litigant Counsel for the Respondent: Mr Lindsay Solicitor for the Respondent: Carmen Wood & Associates ORDERS
NAA 89 of 2022
ADC 1529 of 2013FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KELLY
Appellant
AND: MS OTTO
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
13 September 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 22 August 2022 is dismissed.
2.The Second Amended Notice of Appeal filed on 7 July 2022 is dismissed.
3.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $10,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelly & Otto has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
By a Second Amended Notice of Appeal filed on 7 July 2022, the father appeals from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 8 April 2022 dismissing his application for revised parenting orders in respect of the two children born to his former marriage with the respondent mother.
For the reasons which follow, the appeal should be dismissed with costs.
Background
The parties married in 1999 and finally separated in 2011.
The parties’ children were born in 2009 and 2011. At the time the appealed dismissal order was made, they were aged 13 and 11 years respectively.
Orders were first made between the parties in respect of the children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in August 2017 with their consent, providing for the parties to have equal shared parental responsibility for the children, for them to live with the mother, and for them to spend substantial and significant time with the father.
Each January thereafter, the father wrote to the mother seeking her agreement to some variation of the orders, which requests she repeatedly rejected.
Eventually, in August 2021, four years after the orders were made, the father filed an application to begin fresh proceedings seeking to vary the existing orders. In the main, he proposed that the children instead live with the parties for equal time, even if that regime was to be achieved by a gradual process of change.
The mother resisted the application and sought that it be dismissed for lack of any material change in circumstances under the principle developed by Rice v Asplund (1979) FLC 90-725. The proceedings were listed before the primary judge in March 2022 to specifically hear that threshold dispute.
The material changes in circumstances for which the father contended were recited by the primary judge in the reasons for judgment as follows:
21.The father in his submissions correctly refers me to his Affidavit which identifies what he asserts are the relevant changes in circumstances.
22.The changes that have occurred since the orders were made the father says are as follows:
a.The father has re-partnered and has two young sons aged 2 and 4. The current arrangements mean the children are unable to share a close bond with their siblings.
b.The children’s expressed wishes to have more time with him.
c.The behavioural issues exhibited by the parties’ son [the younger child], which affects his academic progress and is not adequately addressed by the mother.
d.The mother’s partner has physically disciplined [the younger child] in an inappropriate manner.
e.The parties have had disagreements about the correct interpretation of the final orders.
f.The parties are unable to agree which school the children attend.
g.The mother refuses to participate in mediation.
(Footnote omitted)
In the appeal, the father acknowledged the primary judge had correctly encapsulated the nature of his case in those paragraphs.
The primary judge correctly acknowledged how the father bore the burden of proving the material changed circumstances justifying further litigation over the orders (at [25]). Dealing with the dispute as a threshold issue, without the evidence being tested in cross-examination, meant the father’s evidence had to be accepted at its highest (SPS & PLS (2008) FLC 93-363 at [81]; Searson & Searson (2017) FLC 93-788 at [11]). The primary judge acknowledged that was so (at [42] and [67]–[68]).
Thereafter, the primary judge explained in the reasons for judgment why the changes urged by the father were not sufficiently material changes in circumstances to warrant more litigation. The decision to dismiss the father’s pending application was expressed by the primary judge in this way:
61.There is an issue of some significance as to whether further litigation would drive this relationship, which is just functional, to the point where it was completely dysfunctional. I cannot see how this can be in the best interests of the children.
62.The changes referred to by the father are not of such significance or substance as to warrant the reopening of the parenting arrangements.
…
68.In this matter, assuming the evidence of the father is taken at its highest, I do not consider the change in circumstances as alleged by him is sufficient to subject the children to further litigation.
…
70.In those circumstances, I consider it appropriate that there be an order that the father’s application be dismissed.
The Application to adduce further evidence
Pursuant to r 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the father filed an Application in an Appeal on 22 August 2022 seeking to adduce further evidence in the appeal, which application the parties agreed to address contemporaneously with their submissions in the appeal.
The further evidence comprised the text of, together with the annexures to, the father’s lengthy affidavit filed on 22 August 2022. The text of the affidavit essentially amounted to the father’s commentary on the attached documents. The father deposed that the proposed further evidence affects consideration of Grounds 2, 4, 7, 10, 11, 12 and 13 and was characterised by him as evidence which showed:
(a)the mother’s:
(i)repeated “pattern of behaviour by failing to negotiate in good faith”;
(ii)attempt to “sabotage High School Enrolment” for the elder child;
(iii)unilateral submission of “an application to enrol [the elder child] in the High School of her own choice”; and
(iv)allowance of “inappropriate physical handling and/or discipline” of the younger child to continue;
(b)“[e]vidence of fact that paediatric assessment focussed on assisting [the elder child] with academic focus and that current behavioural issues are explicitly excluded from such”; and
(c)“[t]he mandatory documentation associated with the mothers Reply Affidavit”, to which the father claimed he had insufficient time to consider and respond.
As it transpired, the utility of the further evidence in advancing the grounds of appeal was not demonstrated and it remains far from self-evident, in which event the application to adduce the further evidence is dismissed. Unless the evidence helps demonstrate appealable error and would likely produce a different result, it is of no use (CDJ v VAJ (1998) 197 CLR 172 at [109], [111], [140]–[151], [169] and [186.9]).
Most of the documents (attachments marked “MK1”, “MK2”, “MK5” and “MK6”) were documents and emails which purported to demonstrate the mother’s unwillingness to mediate the dispute with the father and, more specifically, the continuing disagreement over the school enrolments. They add nothing to the father’s existing complaint, recognised by the primary judge (at [22(f)] and [22(g)]), even though some post-date the hearing before the primary judge. The parties resolved the dispute over the elder child’s school enrolment (at [27]) and while they are yet to resolve the dispute over the younger child’s future school enrolment (at [58]), the father said in the appeal he anticipated they could achieve a compromise.
Other documents (attachment marked “MK3”) comprise a child welfare agency report made by the father after the hearing, together with emails exchanged between the parties, about the children’s physical treatment by the mother’s partner. That too was a pre-existing issue raised by the father and acknowledged by the primary judge (at [22(d)]). However, the primary judge found the mother had taken steps to remedy the situation (at [48]–[57]). The father wanted to lead the evidence to prove the situation had not been remedied. At its highest, the evidence only demonstrates that, about a week after the hearing, the younger child complained to the father of the mother’s partner grabbing his hand to recover a piece of paper the child was withholding. This disclosure was only elicited in response to the father’s interrogation about whether the children were the subject of “inappropriate physical disciple (sic) or manhandling”. Had the primary judge permitted the father to pursue his fresh application, it was his case that the children should nonetheless live with the mother for an equal amount of time, so his proposal did not solve the concern he harboured about the children’s unduly harsh physical treatment by the mother’s partner. The further evidence adds nothing material.
The remaining documents (attachment marked “MK4”) are emails between the father and the younger child’s paediatrician about the child’s medical treatment. The evidence demonstrates the child’s pharmacological treatment is designed to boost his concentration, reduce his impulsivity, and enhance his capacity to complete schoolwork. The evidence thereby tends to vindicate, rather than impugn, the finding by the primary judge that the mother is taking steps to address the child’s difficulties by having him treated by both the paediatrician and a psychologist and privately tutored (at [47]).
The Appeal
It is not particularly helpful to recite the father’s 13 grounds of appeal, because there are dozens of sub-grounds and the whole narrative runs to over eight pages in length. It is better to try and faithfully interpret the miscellany of complaints.
Ground 2
This ground complains the father was denied natural justice on account of his allegation that he was “not afforded adequate notice of the full Response of the mother (including all mandatory documentation)…and associated affidavit”. This ground attacks the fairness of the hearing and must be considered first because, if sustained, a re-hearing is usually necessary (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
The mother did not file her Response and accompanying affidavit until 3 March 2022 – only a few days before the hearing held on 7 March 2022 – in breach of procedural orders requiring her to file such documents much earlier. The evidence does not reveal when the father was served with the mother’s process, though she contended in her Summary of Argument that an affidavit in substantially the same form was served upon him a month before on 2 February 2022. The father did not dispute the proposition, which seems quite consistent with the order made by the primary judge on 3 February 2022 granting the mother leave to rely upon that affidavit at the hearing (Order 1(b)).
Regardless, when the father appeared represented by counsel at the hearing, he well understood the dispute entailed the determination of whether or not his pending application for varied parenting orders should be dismissed pursuant to the principle established by Rice v Asplund, as is revealed by the content of the Case Outline his counsel furnished to the primary judge before the hearing began. The father’s Case Outline opened in this way:
ISSUES:
1.Father wishes to relitigate for an extension of his time with the children.
2.Mother relies upon the final consent orders and disputes the court’s jurisdiction and the father’s capacity to enliven further litigation on time spending.
Thereafter, the Case Outline set out the revised orders sought by the father, the documents he relied upon to press his case, the summary of facts he asserted to be relevant, and various authorities he perceived to support his case.
No adjournment application was made on his behalf, presumably because there was no need. The threshold dispute was taking place on untested evidence and so the father’s evidence had to be accepted at its highest, as the primary judge properly recognised. The wife’s evidence, to the extent it supposedly contradicted the father, could not be accepted and so her late affidavit was immaterial. Her late-filed Response was also immaterial because the father well knew the mother simply sought the dismissal of his application.
There was no practical deprivation of natural justice and this ground fails.
Grounds 1, 5 and 11
These three grounds complain of the primary judge’s failure to take material considerations into account, being: his Reply (Ground 1); the children’s wishes (Ground 5); and circumstances which could not have been foreseen when orders were last made (Ground 11).
The “Reply” filed by the father on 3 March 2022 is not in fact a Reply, but rather an affidavit.
There was no basis for any Reply to be filed because the father began the proceedings seeking only parenting orders under Pt VII of the Act and when the mother filed her Response to join issue with him in that cause, she did not introduce any new cause of action, so no Reply was warranted (r 2.21(1) of the Rules).
Nor was there any orthodox basis for the father’s “Reply Affidavit” to be filed (r 5.06 of the Rules), though the primary judge made a procedural order on 3 February 2022 entitling him to prepare and file such an affidavit by 24 February 2022 (Order 2). The father’s affidavit of 3 March 2022 was intended to be filed pursuant to that order, but it was obviously filed late.
At the hearing, this exchange then occurred between the father’s counsel and the primary judge:
[COUNSEL FOR THE FATHER]: … In the case outline I haven’t included my client’s affidavit filed on 3 March because I did not have it at that stage. But I would ask your Honour to note that my client does rely - - -
HIS HONOUR: Yes.
[COUNSEL FOR THE FATHER]: - - - upon that affidavit.
HIS HONOUR: Okay.
(Transcript 7 March 2022, p.10 lines 10–18)
Evidently, the affidavit was then taken into account. It was not individually recited in the reasons for judgment as a document upon which the father relied (at [10]), presumably because the primary judge’s reserved reasons identified such documents by extracting them from the father’s Case Outline document, from which the affidavit had been omitted. But that omission does not necessarily mean the contents of the affidavit were overlooked by the primary judge when the decision was made, particularly when it had been drawn to his Honour’s attention during the hearing.
Even if the affidavit was overlooked, a question of materiality arises. When invited to point to any new evidence the affidavit added to the existing body of evidence, the father only nominated three issues. First, he said it was the children who instigated the discussions in which they told him they wish to spend more time with him. Secondly, he elaborated his concern about the children’s unduly harsh physical treatment by the mother’s partner. Thirdly, he deposed to his belief that an update family report should be procured to reflect the children’s “feelings and desires”. The evidence in respect of the first two issues added no extra value to the existing body of evidence, so there was no prejudice to the father, meaning Ground 1 fails. The evidence in respect of the third issue is relevant to Ground 8, which is yet to be addressed.
The father next contended under Ground 5 that the primary judge did not give any proper consideration, nor determine the facts in relation, to the wishes of the children. On the contrary, his Honour recited the father’s evidence concerning the children’s expressed wishes to stay longer with him (at [33]–[36] and [65]) and accepted those facts as alleged, but his Honour remained uncertain as to whether the wishes the children expressed to the father were their genuine sentiments or instead more akin to expressions of allegiance which they perceived he liked to hear (at [36] and [66]).
It was open to the primary judge to ruminate in that way about the true meaning of the children’s wishes, since it is well known children’s views are liable to be influenced by those who care for them (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]–[41]; RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at [52]). While the father’s factual evidence had to be accepted at its highest, that was not so in relation to his inexpert subjective beliefs about the genesis of the children’s expressed views.
The father adduced evidence that one child compiled a list of why he no longer wanted to live with the mother (at [65]), but not even the father expected such evidence to be acted upon, as his application was that the children continue to live with the mother for equal time. It must follow that the father realises the children’s views are not critical to the outcome, just as the primary judge observed (at [66]). Ground 5 fails because the children’s expressed views were taken into account.
Under Ground 11, the father contended that events have since transpired which could not have been foreseen when the consent orders were made in August 2017, which now represent changed circumstances. Those are said to be the mother’s refusal to countenance any variation to the orders and her refusal to mediate the dispute with him, supposedly in breach of those former orders (Order 11). However, this complaint stems from misconception.
The orders made in August 2017 settled the issues of the children’s residence with the mother and when the children would spend time with the father, which orders bound the parties unless and until changed by further order. The father may want to vary those arrangements, but the mother does not. Order 11 only requires the parties to participate in mediation over any dispute concerning “major long-term issues” related to the children, but its operation in this context is limited to the parties’ exercise of equal shared parental responsibility for the children (Order 2). Order 11 is not the vehicle through which the father can force the mother to re-engage with him over other issues finalised by the orders, such as the children’s primary residence and when they spend time with him. If it were otherwise, disputes over those issues could never be finalised and would always be open to agitation by a persistent litigant.
Ground 11 fails because the mother’s disinclination to negotiate with the father over changes to the existing orders was not a consideration which the primary judge was obliged to take into account as a material change in circumstances. She was legitimately content to abide by the past orders made to settle any controversy.
Grounds 6 and 8
These grounds assert the primary judge erred in relation to the treatment of the children’s views.
First, it is contended his Honour erred by “focussing on the uncertainty” of the children’s wishes (Ground 6), though what particular species of ground of appeal from a discretionary judgment that actually comprises remains quite unclear (House v The King (1936) 55 CLR 499 at 504–505). Perhaps it is an alleged error of principle or a claim of taking an irrelevant consideration into account.
Secondly, it is contended his Honour erred by “not determining the [f]acts of the changes in the [c]hildren’s views and level of maturity”, which fact-finding quest he asserted ought have been facilitated by the preparation of a new family report (Ground 8).
There was certainly no factual mistake made because the primary judge accepted the father’s evidence of what the children told him. Nor could there have been any legal error in abstaining from making a finding when the evidence did not permit it. The available evidence did not properly permit any inference to be drawn by the primary judge about whether or not the views expressed by the children to the father were reflective of their genuine sentiments. It would be difficult for the father to contend otherwise since he applied for orders which were actually inconsistent with the elder child’s expressed view. He proposed that the children continue to live with the mother for at least equal time, even though the elder child professed his desire to no longer live with her.
As already discussed under Ground 5, his Honour was uncertain as to the true meaning of the children’s expressed views. However, in answer to these grounds, the primary judge did not dwell unduly upon the issue. The children’s wishes were but one of seven material changes of circumstances for which the father contended and the primary judge dealt with each of them sequentially. To the extent that the issue attracted any extra emphasis in the reasons for judgment, it was only because the father’s counsel described the evidence concerning the children’s views as “compelling” (at [66]).
Of course, it would have been open for the primary judge to order the preparation of an updated family report, as the last one was prepared in October 2016 prior to the last orders being made in August 2017, but it could not have been an error of law not to do so. That is particularly so when neither party asked the Court to order the preparation of an updated family report before the hearing was underway and, during the hearing, it was only broached obliquely.
The father did not seek in his Initiating Application, filed in August 2021, any order under the Act (ss 11F or 62G) directing the preparation of a family report, or alternatively, a more confined report about the children’s views.
The proceedings were before the primary judge for directions on 3 February 2022, at which time the matter was set down for hearing on 7 March 2022 (Order 4). Attendant directions were made about the material upon which the parties could rely at the hearing (Orders 1–3). The father’s counsel did not then ask the primary judge to order the preparation of any report.
In his affidavit filed on 3 March 2022, which was not drawn to the primary judge’s attention until during final submissions at the hearing, the father deposed:
9.… I believe an updated family assessment report is needed to ascertain what is currently in the best interest of the children and so that the children are able to speak with an independent person about their feelings and desires.
(Affidavit of the father, filed 3 March 2022)
The father’s affidavit was in the hands of his counsel before the hearing began, but counsel neither sought an adjournment of the hearing nor an order for the preparation of such a report on the premise of such evidence.
During final submissions, the father’s counsel contended:
[COUNSEL FOR THE FATHER]: But the father is seeking that there be, he says, a family assessment report in his original application. We ask at least for a child impact report because these are significant issues in relation to psychological harm for the children and these are paramount and over and above any insistence of the mother that the orders are the orders for the rest of their natural life.
(Transcript 7 March 2022, p.6 lines 39–43)
It was incorrect for counsel to submit the father sought “a family assessment report in his original application”, because he did not. In any event, the submission was pointlessly made during final submissions, unless accompanied by an adjournment application to defer the determination of the Rice v Asplund threshold issue until after such a report had been furnished, but none was made.
There was no error in the primary judge proceeding to determine the issue on the material adduced by the parties and in the absence of any adjournment application. These grounds fail.
Ground 3
This ground asserts the primary judge erred by “not setting aside the submissions of the mother per the applicable Rules of Court”, but it is unclear whether the asserted error is one of law or discretion.
The parties’ counsel prepared their respective Case Outline documents on 4 August 2022, though it is unknown when the Case Outlines were served. The Rules did not require that either party’s Case Outline be “set aside”, as those documents merely foreshadowed their ultimate submissions. Both parties had the right to be heard orally at the hearing, which submissions were not necessarily confined by the contents of the Case Outlines.
To the extent that this complaint really extends to the mother’s late filing of her Response and affidavit, in breach of earlier procedural orders, it has already been explained under Ground 2 why that caused no procedural unfairness to the father. This ground fails.
Ground 4
In his Initiating Application filed on 13 August 2021, the father sought suites of interim orders and final orders in substantially the same terms.
This ground contends the primary judge erred by “dismissing” the application for the interim orders on 3 February 2022. Advertence to the procedural orders made on 3 February 2022 reveals that no order was made on that date dismissing the interim orders sought by the father. In fact, no such order was made on any date. The whole of his Application filed in August 2021 was dismissed on 8 April 2022, following the hearing conducted on 7 March 2022.
Once the application for final orders was dismissed, it was impossible to maintain any separate application for interim relief (r 5.01 of the Rules).
Grounds 7 and 9
These two grounds contend for errors of law. The grounds are not articulated in precisely that way, but it is the only sensible way to construe the complaints that the primary judge erred by “giving precedence” to the issue of “significant change” at the expense of the paramountcy principle (Ground 7) and by “focussing on ‘significant change’” (Ground 9).
The grounds are rejected because established legal principles, correctly applied, required the primary judge to dismiss the application to re-open proceedings concerning the children under Pt VII of the Act unless the father could demonstrate a material change of circumstances since orders were last made in August 2017.
Far from the search for any material changes in circumstances working to obstruct the attainment of an outcome which promotes children’s best interests, the Rice v Asplund principles embody the paramountcy principle, as the underlying policy is that children’s best interests are not served by their constant immersion in litigation between parties who are interested in their welfare (Marsden v Winch (2009) 42 Fam LR 1 at [55]; Miller & Harrington (2008) FLC 93-383 at [101]). The principle enjoins the Court to prevent endless litigation over the care and supervision of children, unless there has been a change of circumstances of sufficient magnitude to justify the review of arrangements already determined.
While the father may genuinely believe the children’s best interests warranted the entertainment of his substantive application to revise and expand the amount of time they spend with him, from “substantial and significant time” to “equal time”, the primary judge’s contrary decision did not entail any error of principle as contended by these grounds.
Ground 12
This ground opaquely contends the primary judge “erred in supposition without investigation”.
The father’s Summary of Argument expanded the complaint to be that the reasons for judgment were “rife with ambiguity of fact, unproved assertions and supposition without investigation” by which, at least inferentially, he meant the primary judge erred by speculating about the prospect of the younger child’s aberrant behaviour worsening if fresh litigation was permitted to ensue.
The primary judge said this in the reasons for judgment:
44.What is clear is that [the younger child] is a child who is moving between the houses of his parents who clearly do not get on. The question of whether those issues in respect of his behaviour would be addressed if the conflict ceased remains to be answered.
45.There is a significant potential for those behavioural issues to in fact increase in the context of further litigation.
The genesis of those conclusions was the evidence given by the parties about the younger child’s misbehaviour, which the father contended compromised his academic performance (at [37]). The primary judge rejected speculation that the mother’s employment commitments were a contributory factor (at [42]) and found neither party lacked the parenting capacity to deal with the problem (at [41]). The father believed the younger child’s behaviour would improve if they spent more time together (at [39]), but again that was evidence of his belief, not objective facts. His belief may be genuinely held, but it may not be objectively correct.
It was open to the primary judge to contemplate the prospect of the younger child’s worsening misbehaviour if he is the focal point of more litigation between the parties, battling over the stability of his care arrangements. It is well accepted that children, particularly those who struggle to regulate their behaviour because of underlying medical conditions, are better able to cope when their family environment is calm and harmonious. Re-opening litigation between the parties was liable to disturb any sense of calm which had settled on the family. Absent good reason being demonstrated, the primary judge was astute to avoid that eventuality.
Ground 10
This ground contends the primary judge erred by dismissing his application, but does not articulate what legal, factual or discretionary error was made. It is a bare complaint and is rejected as such.
The father seemingly has complaints about the difficulty the parties have had sharing parental responsibility for the children equally, in the manner envisaged by law (s 65DAC), but that is not necessarily a reason to re-open the orders. It might rather be the basis for the Court making additional orders to settle disputes which arise concerning discrete aspects of the children’s care. The father seemed reluctant to accept that, if the problem of the parties’ inability to consult and agree is really so profound, the last resort would be to revoke the order for equal shared parental responsibility and vest the party with whom the children predominantly live with exclusive parental responsibility for them. An application to that effect might yet eventuate if the parties cannot improve their co-operation.
Ground 13
This ground contends that “open questions remain”, “suppositions have been made” and “appropriate investigation did not occur”.
None of those complaints is characteristic of a recognised ground of appeal which lies from a discretionary judgment, so this ground must fail. In any event, the father conceded in the appeal that this ground only re-states complaints raised by other grounds, which the preceding reasons reject.
Conclusion
The appeal fails for lack of merit. The decision of the primary judge is not shown to have been vitiated by appealable error.
In that event, the mother sought an order compelling the father to pay her party/party costs of and incidental to the appeal, which sum she reduced to $10,000 (plus GST). The father conceded she should have her reasonable party/party costs if the appeal failed, but without conceding the quantification. The costs are fixed at $10,000 pursuant to r 12.17(1) of the Rules to avoid the further cost and inconvenience which a costs assessment would entail. The appeal was wholly unsuccessful and, properly advised, the father should not have brought it.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 13 September 2022