King & Finneran
[2001] FamCA 344
•28 May 2001
[2001] FamCA 344
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT PARRAMATTA
Appeal No. EA 2 of 2001
File No. ZP.1199 of 2000
IN THE MATTER OF:
KING
Appellant/Husband
- and -
FINNERAN
(FORMERLY KING)
Respondent/Wife
REASONS FOR JUDGMENT
BEFORE: Collier J
HEARD: 5 March 2001
JUDGMENT: 28 May 2001
APPEARANCES: The Appellant appeared on his own behalf
The Respondent appeared on her own behalf
King v Finneran
EA 2 of 2001
Coram: Collier J
Date of Hearing: 5 March 2001
Date of Judgment: 28 May 2001
RESIDENCE - Application to vary existing orders – Whether test in Rice v Asplund (1979) FLC 90-725 had application – If applicable, whether test satisfied – Interest of child paramount consideration – CDJ v VAJ (1998) FLC 92-828, Bennett v Bennett (1991) FLC 90-126, and The Marriage of D v Y (1995) FLC 92-581 considered.
This was an appeal by the husband against orders of a Federal Magistrate. The husband sought to vary residence orders recently made by Moore J following a hearing.
The Magistrate at all times indicated to the husband and wife that she proposed to apply a threshold test, which she described as the test in Rice v Asplund.
At the hearing the learned Magistrate dealt with the matter by application of the threshold test and dismissed the husband’s application.
The husband argued firstly that the rule in Rice v Asplund had no application. The husband relied on the ‘paramountcy principle’.
Further, he argued that even if there was a threshold test applicable, then he had satisfied that test by the material placed before the court.
The husband’s appeal was dismissed on the basis that there was the power in the Federal Magistrate to deal with the matter in the way she did, and it was a matter of her discretion as to the manner in which she dealt with the matter. It was further held that the test having been found to have application, the husband did not satisfy the test so as to demonstrate a need for re-litigation. Orders were made by the consent of the parties in relation to the provision of photographs. An order was made for costs in favour of the respondent.
APPEAL DISMISSED
The Appeal
The appellant appeals against the decision of a Federal Magistrate. On 7 December 2000 Federal Magistrate Ryan dismissed the application of the husband, contained in his amended application filed on 5 December 2000 (see Appeal Book page 16).
In that amended application the appellant sought orders relating to three children, N, born 3 January 1990, B, born 10 July 1991, and G, born 16 June 1993. The effect of the orders sought by the husband was to increase the time the children spent with him, by giving him up to four hours on one occasion in each alternate week, and by giving him one or perhaps two days coinciding with public holidays in each year.
The husband had also sought orders in respect to the provision of photographs of the children, the respondent and himself.
It was the husband’s case on appeal that the learned Federal Magistrate should not have dismissed his application in the manner that she did, but rather should have allowed the matter to proceed to a hearing before making any decision in relation to the disposition or disposal of the matter.
The respondent argued before me that the Federal Magistrate had acted correctly and in accordance with the law. The respondent’s case was that the appeal should be dismissed, which would of course mean that the husband’s application of 5 December 2000 would stand dismissed.
Brief Background
A brief background to the matter is as follows. The parties married on 17 September 1998. There are three children to whom I have already made reference. The parties separated on 16 November 1997. The children thereafter remained in the care of their mother and had contact with their father. The parties were divorced in November 1999. The husband instituted proceedings in the Family Court by an application filed in February 1999, which was subsequently amended on a number of occasions.
The matter came on for final hearing before her Honour Justice Moore. That hearing was conducted on 6, 7 and 8 December 1999. Her Honour delivered a written judgment on 31 January 2000 (pages 71 et seq. of the Appeal Book). Her Honour made detailed and careful orders in relation to the times when the children should live with each of the parents. Those orders are to be found at page 111 of the appeal documents.
Her Honour in her orders did not make any specific order in relation to photographs and/or negatives. Her Honour did make a declaration in the terms of paragraph 17 of the orders.
The husband then on 10 August 2000 filed an application in the Family Court at Sydney. In respect of that application, orders were made by the Family Court, Sydney on 28 August 2000 dealing with contact by the husband in relation to the period of the Sydney Olympics. The matter was then transferred to the Federal Magistrates Court at Parramatta.
10. The matter came before Federal Magistrate Ryan on 11 October 2000. On that occasion the learned Magistrate listed the matter for hearing before herself on 30 November 2000. Her Honour said that that hearing would address the threshold issue of the ‘Rice v Asplund’ test (Rice v Asplund [1979] FLC 90-725). Her Honour raised this issue clearly with both parties at page 135 of the Appeal Book at line 5.
11. The matter was again before her Honour on 30 November 2000, the date that had previously been fixed for the hearing of the matter. On 30 November 2000 the matter was again adjourned, to 7 December 2000 for hearing. Her Honour made further orders and directions in respect of filing of material, particularly by the husband.
12. On 5 December 2000 the husband filed an amended application (see page 16 of the Appeal Book), and an affidavit sworn on 5 December 2000 (page 31 of the Appeal Book).
13. Federal Magistrate Ryan heard the matter on 7 December 2000. The learned Federal Magistrate conducted the hearing on the basis that she had previously outlined, that is, she determined the matter by way of a threshold test. For the reasons set out by her on 7 December 2000, the learned Federal Magistrate dismissed the husband’s application. It is against that dismissal that the husband appeals.
The Law in Relation to Appeals from Federal Magistrates
14. An appeal from a Magistrate to the Full Court of the Family Court of Australia is subject to section 94AAA of the Family Law Act. Sub-section (1)(a) is in the following terms:-
“An appeal lies to the Family Court from:
(a)a decree of the Federal Magistrates Court exercising original jurisdiction under this Act.”
15. Sub-section (3) is in the following terms:-
“The jurisdiction of the Family Court in relation to an appeal under sub-section(1) is to be exercised by a Full Court unless the Chief Judge considers that it is appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single Judge.”
16. In this matter the appeal is being heard by a single judge.
17. In Re Bryant (Ex Parte) Guarino (75 ALJR at 478) his Honour Justice Hayne found that appeals from a Federal Magistrate to the Family Court are not, or at least arguably are not, to be dealt with by way of hearing de novo. Accordingly, the matter proceeded before me on the basis that the hearing was by way of appeal and, as such, the principles enunciated in House v The King (1936) 55 CLR 499 had application.
Judgment Appealed From
18. The learned Magistrate set out the nature of the applications before her and a short history of the matter itself (see paragraphs 2 to 8 of reasons for judgment at pages 8 and 9 of the Appeal Book).
19. At page 9 paragraph 9 and following, her Honour set out the relevant law that she determined was appropriate in the matter. Her Honour commenced paragraph 9 of her reasons for judgment by observing that in all matters concerning parenting orders the best interests of the children are the paramount consideration. Her Honour further, at paragraph 11 (page 10 Appeal Book) said this:-
“It is a matter for the individual judicial officer to determine whether this threshold issue is addressed as a discrete hearing or within the context of a complete trial. Bennett v Bennett (1991) FLC 91-617. In the circumstances of this matter; in particular that the orders were made as recently as 31 January 2000 I determined that in this case the Rice v Asplund issue should be addressed as a discrete hearing prior to the matter being listed for a complete exploration of the matters raised by the Father. It is that threshold hearing that has taken place today.”
20. The learned Federal Magistrate then dealt with the hearing before herself in paragraphs 12 to 27 of the reasons for judgment.
21. Thereafter, in paragraphs 28 to 32 inclusive of the judgment, the learned Magistrate set out her conclusions in relation to the matter before her. At paragraph 28 she made it clear that the affidavit evidence of the husband, which she had considered, as to what had occurred or changed since the making of the orders of Justice Moore, did not, to use the words of the learned Federal Magistrate, ‘warrant a finding that there has been a significant change in the children’s circumstances such that there should be a further hearing in relation to parenting matters, in particular, contact’.
22. Further, in paragraph 29 the learned Federal Magistrate used this expression. ‘At best, in relation to that order (long weekends), the adjustment sought is for one day a year and that is not on any view a significant adjustment and ought not be the subject of litigation’.
23. The learned Federal Magistrate also dealt with the photographs. This aspect of the matter I will return to later in these reasons for judgment.
The Husband’s Notice of Appeal
24. The husband’s amended Notice of Appeal contains 30 grounds. At the commencement of the hearing before me the appellant grouped the appeals into three broad headings and proceeded to argue the appeal on that basis. Into the first group the husband placed grounds 2, 3, 24, 26, 27 and 28. This group of grounds went to the issue identified by the appellant as whether or not the Federal Magistrate had the power to apply a threshold test in the matter.
25. Next, the husband grouped grounds 4, 5, 6, 7, 9, 11, 12, 13, 14, 20 and 21. As I understand the grounds argued in this group, it was the husband’s contention that if the learned Magistrate was able to deal with the matter in which she elected to do, that the husband had indeed raised sufficient matters to satisfy any threshold test, so as to enable the appellant to proceed to a hearing of the issues in the usual manner.
26. The remaining grounds the husband referred to as miscellaneous and were directed towards the issue of photographs. I will return to that aspect of the matter later in these reasons for judgment.
The Hearing of the Appeal
The Children’s Issues
27. The appellant had filed a case outline at the commencement of the hearing and an extensive case list identifying 27 cases upon which he sought to rely in the course of his argument. The appellant, if I might say so with respect to him, argued the appeal with some real skill and effect before me.
28. As to the first grouping of the appeal grounds, the husband argued that to apply a threshold test to matters involving children is to effectively dissect such a matter into what the husband identified as ‘threshold’ and ‘merit’ components. The husband put that it was not open for a court to do this. The husband used the expression that it was not open to the learned Magistrate to substitute proceedings, principles or tests other than those specifically provided in the Family Law Act. The husband says that a court exercising jurisdiction under the Family Law Act cannot avoid following the matters set out in the Family Law Act. The husband made reference to section 60B of the Family Law Act, section 65E of the Family Law Act and section 68F of that Act. Each of those sections is reproduced hereunder.
SECTION 60B
The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.
SECTION 65E
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
SECTION 68F
Subject to sub-section (3), in determining what is in the child’s best interests, the court must consider the matters set out in sub-section (2).
The court must consider:
(a)any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
(b)the nature of the relationship of the child with each of the child’s parents and with other persons;
(c)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person, with whom he or she has been living;
(d)the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(e)the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f)the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(i)any family violence involving the child or a member of the child’s family;
(j)any family violence order that applies to the child or a member of the child’s family;
(k)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l)any other fact or circumstance that the court thinks is relevant.
If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in sub-section (2).
In paragraph (2)(f):
“Aboriginal peoples” means the peoples of the Aboriginal race of Australia;
“Torres Strait Islanders” means the descendants of the indigenous inhabitants of the Torres Strait Islands.
29. The husband argues that amendments made to the Family Law Act in 1995 so changed the Act that the test in Rice v Asplund no longer has application.
30. Prior to the 1995 amendments to the Family Law Act there was no counterpart or similar provision to the now existing section 60B. Section 64 of the Act, prior to the 1995 amendments, contained various sub-sections and is as set out hereunder.
SECTION 64(1)
In proceedings in relation to the custody, guardianship or welfare of, or access to, a child:
(a)the court must regard the welfare of the child as the paramount consideration;
(b)the court shall consider any wishes expressed by the child in relation to the custody or guardianship of, or access to, the child, or in relation to any other matter relevant to the proceedings, and shall give those wishes such weight as the court considers appropriate in the circumstances of the case;
(ba)subject to section 60D and paragraph (b) of this sub-section, the court shall, unless in the opinion of the court it is not practicable, make the order that, in the opinion of the court, is least likely to lead to the institution of further proceedings in relation to the custody or guardianship of the child;
(bb)the court shall take the following matters into account:
(i)the nature of the relationship of the child with each of the parents of the child and with other persons;
(ii)the effect on the child of any separation from:
(A)either parent of the child; or
(B)any child, or other person, with whom the child has been living;
(iii)the desirability of, and the effect of, any change in the existing arrangements for the care of the child;
(iv)the attitude to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent of the child;
(v)the capacity of each parent, or of any other person, to provide adequately for the needs of the child, including the emotional and intellectual needs of the child;
(va)the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child;
(vi)any other fact or circumstance (including the education and upbringing of the child) that, in the opinion of the court, the welfare of the child requires to be taken into account; and
(c)subject to paragraphs (a), (b), (ba) and (bb), the court may make such order in respect of those matters as it considers proper, including an order until further order.
31. Section 64(1)(a) said the court must regard the welfare of the child as the paramount consideration in proceedings in relation to custody, guardianship, welfare of or access to a child. This is in somewhat different terms to the present section 65E, which is in the terms as set out above and indicates that the court must regard the best interests of the child as the paramount consideration.
32. Section 64(1)(b) to (bb) and the present section 68F are in different terms as to the matters to be considered by the court.
33. The 1995 amendments to the Act also introduced into the Act section 60B. Sub-section (1) of course deals with the objects of the part, whereas sub-section (2) deals with the principles underlying the part. Both sections are precise in their terms.
34. The husband argues that these changes are such that they set up a regime that must be followed by any court in reaching a determination. He argues that there is no way in which a court can depart from following the statutory provisions and thus identifying and dealing with each section 68F factor on an individual basis whilst having regard to the objects and principles set out in section 60B(1) and (2). It is his argument that the combination of section 65E and section 68F are a mandatory code which, since 1995, must be followed.
35. This is not so. Section 64 of the previous Act was in terms not so different from the current legislation that a major change has been achieved by the 1995 legislation. When placed side by side, section 64 of the old Act and section 68F of the new Act are in not dissimilar terms. Under the old Act there were specific requirements as set out in paragraphs (b), (ba) and (bb) in all its sub-paragraphs. Largely those matters are reproduced in the existing section 68F. The legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is, the application of a threshold test to be unavailable since the coming into effect of the 1995 amendments.
36. The husband argued that in the hearing of the matter before the learned Magistrate the welfare of the children was the paramount consideration. This is clearly so. The husband made reference to CDJ v VAJ (1998) FLC 92-828. In that case their Honours of the High Court looked at the paramountcy principle. Their Honours Justices McHugh, Gummow and Callinan found in paragraph 87 that an order admitting or rejecting further evidence was not a parenting order within the terms of section 64 (as it then was). Their Honours were satisfied that such an order did not directly invoke the application of the paramountcy principle. Their Honours found that in an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal.
37. Clearly, the learned Magistrate in the hearing before her was bound to regard the welfare of the child as the paramount consideration by virtue of section 65E of the Family Law Act. I am bound to have regard to the best interests of the child as the paramount consideration when determining the appeal (CDJ v VAJ). In the High Court, whilst their Honours Justices McHugh, Gummow and Callinan found that the Full Court was bound to have regard to the best interests of the child as the paramount consideration when determining the appeal, their Honours did not set out with any detail how that consideration was to be undertaken. What their Honours did say was that the (Full) court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the order.
38. The appellant can obtain no support from CDJ v VAJ for his contention, previously referred to that the court below was required to identify and deal with each factor. Rather, the Magistrate was required to have at the forefront of her mind the question whether or not to allow the further hearing to proceed would advance the welfare of the children.
39. The husband in his presentation of the appeal went to paragraphs of his affidavit which he had grouped so as to relate them to the various sub-sections under section 68F(2). He argued that the issues relating to each of the sub-sections were clearly raised and identified by him in that material. He argued that the learned Magistrate had no alternative but to deal with each of those matters by identifying them and evaluating them in reaching her determination to dismiss the application.
40. Clearly, in Rice v Asplund itself and the following authorities, there is no indication or guideline as to the manner in which the court is to reach its determination as to whether or not the matter will be dealt with as a threshold test.
41. The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or as I understand the appellant’s submissions at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. The husband’s line of argument in this regard is flawed. It is not the case that an application of the Rice v Asplund test divides or compartmentalises a matter into a threshold component and a merit component. It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett v Bennett [1991] FLC 90-126).
44. To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
45. The husband’s second argument, related to the second grouping of his appeal grounds, was that if the test in Rice v Asplund were to have application, then he had demonstrated sufficient change or fresh circumstances to require the matter to be heard afresh.
46. The husband argued that the learned Federal Magistrate had set the bar too high as to what was required by way of change or fresh evidence. The husband argued before me that the change must of itself in some way affect the children or have reference to them. With that I agree. The husband relied on dictionary definitions of ‘significant’ and ‘substantial’. The learned Federal Magistrate uses both words in the course of her judgment and at times uses them, it would seem, interchangeably.
47. The definitions to be obtained from the Macquarie Dictionary are as follows:-
Significant: 1. Important; of consequence
2. Expressing a meaning; indicative
3. Having a special or covert meaning; suggestive
4. Something significant; a sign
Substantial: 1. Of a corporeal or material nature; real or actual
2.Of ample or considerable amount, quantity, size, etc.
3.Of solid character or quality; firm, stout or strong
4.Being such with respect to essentials
5.Wealthy or influential
6.Of real worth or value
7.Pertaining to the substance, matter, or material of a thing
8.Of or pertaining to the essence of a thing; essential, material,
or important
9.Being a substance; having independent existence
10.Pertaining to or of the nature of substance rather than
accidents
11.Something substantial
48. The husband argued that the learned Federal Magistrate used the words at times interchangeably and at times indicating quite different meanings.
49. Clearly, both words indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50. The words in any event are not words of necessarily strict dictionary definition. In The Marriage of D v Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
51. The husband’s case was that the learned Federal Magistrate did not give the changes as identified full and sufficient weight, either individually or collectively.
52. The Magistrate at paragraph 15 of her judgment (page 10 of the Appeal Book) dealt with the change in circumstances relating to the husband’s relationship with Ms Portelli.
53. The learned Federal Magistrate found that Justice Moore was aware that the husband did have a relationship with that person and that she was already involved in his life. The learned Magistrate accepted a submission by the wife that all that had occurred as between the appellant and Ms Portelli was ‘a natural progression of a happy relationship’. The learned Magistrate found that all that had occurred was ‘an ordinary and logical progression of a developing, happy relationship’.
54. There was further evidence before the learned Magistrate that Ms Portelli was due to give birth to a child of herself and the husband. The Magistrate at paragraph 18 accepted that there would soon be a baby boy in the husband’s household and that that child would be the subject children’s half-brother. The husband asserts that this of itself is a sufficient change to require re-litigation, and that it becomes an even stronger consideration when coupled with the developing relationship between the children and Ms Portelli.
55. The children will have a half-sibling. That child will be a part of the household of their father and stepmother, and the children when they live with their father. The children will know that child and will no doubt obtain pleasure and enjoyment from seeing their half-brother grow. The relationship of the subject children with their stepmother appears to be satisfactory and improving.
56. The husband relies strongly on the allegations of abuse set out in his affidavit. These allegations he says are serious and require of themselves a re-hearing of the matter. The learned Federal Magistrate dealt with the issues of abuse in paragraphs 20 to 22 of her reasons for judgment. She dealt with them briefly and succinctly, and indicated that she had taken them into account and that she was not satisfied that a significant change was represented by those allegations. The husband contends that these allegations were important and of such significance that the Magistrate should have, on these matters alone, allowed his application to proceed to a hearing.
57. Clearly, matters of abuse had occupied her Honour Justice Moore in her judgment. Clearly, allegations of the husband of this type had been made prior to the hearing before Justice Moore.
58. The husband was most concerned that the allegations of abuse should be acted upon so as to enable re-litigation. However, the end result the husband seeks, that is, the new orders he proposes, do not seem designed or aimed at any form of protection for the children from the abuse alleged, nor do they seek to change the children’s situation with the wife, and the time they spend with her, to any real degree. It is the husband’s case that he should have additional hours each fortnight and one, perhaps two, extra days in each year. It is difficult to reconcile the orders that the appellant seeks to obtain in his amended application with the allegations of abuse as set out in his affidavit.
59. The husband identified evidence in his affidavit which dealt with the children’s capacity to cope with intervals between periods of time when the children were with him. The learned Magistrate dealt with this matter by identifying difficulties that had been taken into account by Justice Moore in the trial before her. The learned Magistrate was satisfied that both parents, and particularly the husband, had exposed the children to continuing hostility.
60. The husband also relied upon the children’s academic performance. This matter was dealt with extensively before Justice Moore. The learned Federal Magistrate considered the children’s present school performance. The appellant sought to satisfy the Magistrate that the children, particularly B, were not doing well at school and that orders he sought were necessary to enable him to become involved in the children’s school activities, and especially the children’s homework. The learned Magistrate was satisfied that the children, and by this she clearly means all of the children, were still doing well at school.
61. The appellant contends that each of the matters that he identified above is sufficient to establish a change in circumstances whereby a re-hearing of the matter was required. The husband further argued that if any one of the individual matters that he identified was not sufficient to establish a change in circumstances so as to warrant a re-hearing, then when looked at together the overall impact of the matters, taken together, was such that the cumulative effect of them as a whole required re-litigation.
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
63. This case concerns proposed alterations to existing orders that are, whilst no doubt very important in the eyes of the appellant, such that they would cause small changes to the amount of time the children would spend with the husband if the orders as sought by him were made in their entirety. This is not necessary to protect the children. This is an important consideration.
64. Simply because the changes sought by the appellant are of a minor nature the threshold test is not reduced. Indeed, the less important or far reaching the change or alteration to orders that is sought to be achieved is, perhaps the more important it is to demonstrate a change of circumstances or fresh circumstances requiring a further hearing to achieve this result. This is so because the purpose of the rule is to protect the children from exposure to further unnecessary litigation. If it were open to a litigant to achieve a re-hearing because he were able to argue that the changes he sought were minor and accordingly the change in circumstances or fresh matters that he needed to raise were accordingly reduced, this would produce ridiculous and nonsensical results.
65. The learned Magistrate was entitled to deal with the matter in the way in which she did. Nothing in the 1995 amendments to the Family Law Act affect or undermine or destroy the validity of the approach adopted by the learned Magistrate in dealing with the matter in the manner in which she did.
66. Having accepted that the interests of the children are the paramount consideration, and there can be no doubt that this is so, the learned Magistrate clearly determined the matter by means of application of the threshold test. She examined the matters raised by the appellant before her and determined there was nothing to be gained for the children by allowing re-litigation on the issues so raised.
67. The learned Magistrate dealt with matters that had been raised by the husband as giving rise to a change in circumstances or fresh circumstances, such as to require re-litigation. The learned Magistrate dealt with these matters and made findings in respect of them. She dealt with them individually and not cumulatively. However, the learned Magistrate was clearly of the view that the totality of the matters as identified and put before her by the husband did not require a re-hearing. The findings made by the learned Magistrate in respect of each of the categories that the husband raised was open to her on the material before her, and the way in which the matter was conducted before her.
68. This is an appeal against an exercise of discretion. An appellate court may review or interfere with a discretionary judgment which has (a) proceeded under a wrong principle, (b) in which the judicial officer has failed to give proper weight to a relevant matter, (c) the judicial officer has given undue weight to a particular matter, (d) the judicial officer has given weight to an irrelevant matter, or (e) the judicial officer has reached a conclusion that is manifestly unjust.
69. The learned Magistrate understood the task that she had to perform. She properly undertook that task. She clearly identified the considerations which she was required to take into account and dealt with those matters appropriately.
70. The learned Magistrate was entitled to deal with the matter in the way in which she did. Despite the husband’s competent and cogent arguments, and the painstaking effort he put into preparing and presenting the matter before me, I am unable to detect any error on the part of the learned Federal Magistrate.
71. The learned Magistrate has proceeded in accordance with the law and given proper weight to the matters relevant to her determination. She has not given weight to an irrelevant matter, nor undue weight to any particular matters so as to produce her wrong or incorrect result. The decision she has reached is not such that it is manifestly unjust. I am unable to detect any error on the part of the learned Federal Magistrate such as requires interference. Accordingly the appeal will be dismissed as to that part which deals with variations to parenting orders.
The Issue of the Photographs
72. I turn then to the issue of the photographs.
73. This matter was discussed at the commencement of the hearing before me. It is clearly a matter of some significance to the husband. The wife concedes that there had in the past been some exchange of photographic negatives, on a packet by packet basis.
74. Agreement was reached between the parties that the wife will give the husband the remaining negatives within 14 days. Those negatives are of photographs involving the children and the parties. The husband is to have photographs made from those negatives and return the negatives to the wife within one month. I will order accordingly.
The Issue of Costs
75. At the end of submissions as to the matter of the appeal itself, I heard submissions from each of the parties as to costs. The husband indicated that if he were successful in his appeal he would not seek costs.
76. The wife indicated that if she was successful, that is, if the husband’s appeal was dismissed, she would seek costs in the amount of $3504 made up as follows:-
For research, fees payable (150 hours at $20 per hour) $3000
Travel $80
Stationery $113
Internet connection $41
Telephone $40
Child minding $130
Additional phone $50
Photocopying $50
TOTAL $3504
77. The appellant has been wholly unsuccessful in relation to the major part of his appeal, that is, in overturning the order of the learned Federal Magistrate dismissing his application. That was the matter that occupied all but a few minutes of hearing time.
78. The husband has caused the wife to attend court and incur expense in resisting his appeal. The parties have reached agreement between themselves in respect to the issue of photographs, but this as I say was a very minor part of the appeal as it was conducted before me. I am satisfied that in all the circumstances it is proper that the husband pay an amount by way of the expenses incurred by the wife in relation to her participation in the appeal. I now turn to the quantum of any such order.
79. By far the largest amount sought by the wife is the amount of $3000 for research. That research was carried out by a friend of the wife, who I permitted to sit with the wife in court and act as a Mackenzie friend or adviser to the wife during the course of the hearing of the appeal.
80. The wife simply claims that the $3000 is calculated as 150 hours of research at $20 per hour. There is no further evidence before me in relation to this aspect of the matter. I am not told of the qualifications of the person who carried out the research. I am however not told that she is legally qualified. I am firmly of the view that the amount claimed for research ought not be allowed. Whilst no doubt some time may well have been necessarily spent in preparing the respondent wife’s case, the claim for 150 hours is entirely unsupported before me. The charge of $20 per hour is also totally unsupported before me. Accordingly, I will not allow the sum of $3000 as sought, or any part thereof.
81. Of the remaining items before me, the husband has challenged the figure of $130 for child minding. He makes it clear, as I understand him, that it was not necessary for the wife to obtain and pay for child minding at any stage as he would have assisted in this regard had the wife contacted him. Accordingly, I will not allow the sum of $130.
82. I propose however to allow the remaining matters, which are as follows:-
Travel $80
Stationery $113
Internet connection $41
Telephone $40
Additional phone $50
Photocopying $50
TOTAL $374
83. It is this amount that I will order that the husband pay to the wife within two months of today.
Orders
84. The orders that I make then are as follows:-
1.That the husband’s appeal be dismissed, save and except as follows:-
(a)That, by consent, the wife deliver to the husband within 14 days all negatives in her possession involving the children and the parties to which the husband has not had access to date.
(b)That, by consent, the husband be entitled to take prints of such negatives at his expense, and such negatives shall be returned to the wife within one month of the date upon which they are received by the husband.
2.That the husband pay the wife’s costs of and incidental to this appeal assessed in the sum of $374, within two months of the date hereof.
I certify that the 84 preceding
paragraphs are a true copy of the reasons for
judgment herein of
His Honour JUSTICE COLLIER
Associate
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