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).
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CaseChat Overview and Summary
In the case of Kelly & Otto, the father sought to appeal the primary judge’s decision to dismiss his application to vary existing parenting orders concerning his two children with the mother. The primary judge had found that the father had not demonstrated a sufficient change in circumstances to warrant further litigation, and accordingly dismissed the father's application. The father’s appeal was based on various grounds, including the primary judge's handling of evidence and perceived errors in the application of the law. The father also sought to adduce further evidence in support of his appeal, which was ultimately denied.
The legal issues before the court were whether the primary judge erred in dismissing the father's application to vary the existing parenting orders and whether the primary judge should have allowed the father to adduce further evidence in support of the appeal. The court had to consider the burden of proof on the father to demonstrate material changes in circumstances and whether the proposed evidence would demonstrate appealable error and likely produce a different result. The father’s arguments primarily centred on the mother's behaviour and the impact of the existing arrangements on the children.
The court found that the primary judge correctly identified the material changes in circumstances as proposed by the father and accepted the father's evidence at its highest. However, the court held that the changes were not of sufficient significance or substance to warrant reopening the parenting arrangements. The court also dismissed the father's application to adduce further evidence, as it did not demonstrate appealable error or the likelihood of producing a different result. The court concluded that the appeal failed for lack of merit, and the primary judge's decision was not vitiated by appealable error.
The court ordered that the mother be paid $10,000 (plus GST) as her reasonable party/party costs of and incidental to the appeal, pursuant to r 12.17(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The father conceded that he should pay the mother's costs if the appeal failed but did not concede the quantification. The court fixed the costs at $10,000 to avoid further cost and inconvenience.
The legal issues before the court were whether the primary judge erred in dismissing the father's application to vary the existing parenting orders and whether the primary judge should have allowed the father to adduce further evidence in support of the appeal. The court had to consider the burden of proof on the father to demonstrate material changes in circumstances and whether the proposed evidence would demonstrate appealable error and likely produce a different result. The father’s arguments primarily centred on the mother's behaviour and the impact of the existing arrangements on the children.
The court found that the primary judge correctly identified the material changes in circumstances as proposed by the father and accepted the father's evidence at its highest. However, the court held that the changes were not of sufficient significance or substance to warrant reopening the parenting arrangements. The court also dismissed the father's application to adduce further evidence, as it did not demonstrate appealable error or the likelihood of producing a different result. The court concluded that the appeal failed for lack of merit, and the primary judge's decision was not vitiated by appealable error.
The court ordered that the mother be paid $10,000 (plus GST) as her reasonable party/party costs of and incidental to the appeal, pursuant to r 12.17(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The father conceded that he should pay the mother's costs if the appeal failed but did not concede the quantification. The court fixed the costs at $10,000 to avoid further cost and inconvenience.
Orders
Orders of the court
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Background
Background to the litigation
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]).
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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