LANCET & DEAVES - [2012] FamCAFC 36

FAMILY COURT OF AUSTRALIA

LANCET & DEAVES

[2012] FamCAFC 36

FAMILY LAW – APPEAL – CHILDREN – where the appellant argued that the issue of the children spending time and communicating with him had never been finally determined and was left open by the Federal Magistrate on 12 December 2008 – where the orders made on 12 December 2008 discharged all previous orders and were final orders – where the principle in Rice and Asplund is enlivened upon the revival of the appellant’s initiating application – where it is argued that the fact of the appellant no longer being incarcerated is a significant enough change in circumstance to enable the hearing to proceed – where the issue here is not just whether there has been a change of circumstance but whether the change of circumstance is sufficient to require the Court to again address the particular parenting issue – where the Federal Magistrate dismissed the application of the husband because he had not established that he had successfully addressed the underlying causes of his previous behaviour and it was not therefore in the best interests of the children that the proceedings be allowed to continue – where there is no merit in any of the grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – COSTS – where the respondent seeks an order for costs – where it is appropriate that the appellant pay the respondent’s costs of the appeal as agreed or in default of agreement as taxed – costs so ordered.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Marsden & Winch [2009] FamCAFC 152
Miller & Harrington [2009] FamCAFC 12
Reid & Lynch (2010) FLC 93-448
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

APPELLANT:

Mr Lancet

RESPONDENT:

Ms Deaves

FILE NUMBER:

MLC

1286

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

9 March 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

19 July 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 March 2011

LOWER COURT MNC:

[2011] FMCAfam 304

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ambrose

SOLICITOR FOR THE APPELLANT:

Cahill & Rowe Family Law

COUNSEL FOR THE RESPONDENT:

Mr Curtain

SOLICITOR FOR THE RESPONDENT:

Nevett Wilkinson Frawley

Orders

The appeal be dismissed.
The husband pay the wife’s costs of and incidental to the appeal as agreed, or in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lancet & Deaves has been approved by the Chief Justice 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: SA 28 of 2011
File Number: MLC 1286 of 2007

Mr Lancet

Appellant

And

Ms Deaves

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 28 June 2011 Mr Lancet (“the father”) appeals against parenting orders made by Walters FM on 11 March 2011. The respondent to the appeal is Ms Deaves (“the mother”).
In summary, the orders appealed against dismissed the father’s application filed on 24 January 2011 for interim and final parenting orders and required the father to pay the mother’s costs in the fixed sum of $2,000 by no later than

11 September 2011.
On appeal the father seeks that the orders of Walters FM made on 11 March 2011 be set aside and that the matter be remitted to the Federal Magistrates Court for re-hearing. The father also seeks various procedural orders relating to the appointment of an Independent Children’s Lawyer and the preparation of a family report. In relation to costs, the father seeks that costs certificates be issued pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Background

The parties commenced cohabitation and married in 1997. They separated in 2006.
The parties have three children, X born in 1998, Y born in 2000 and Z born in 2002. At the time of trial the children were aged 12, 10 and 8 years respectively.
In October 2006 final parenting and property orders were made by consent in the Magistrates Court. Those orders provided, inter alia, for the parties to have shared care of the children on a week about basis.
During 2007 and 2008 the mother reported several incidents of violence perpetrated towards her by the father. In December 2007 the husband pleaded guilty to 11 breaches of an intervention order made for the mother’s protection on 20 July 2006. He was convicted and fined $500.
On 7 February 2007 the mother filed an application seeking to vary the orders of 4 October 2006 by reducing the father’s time with the children from week about to alternate weekends. After the release of a family report in April 2007, final orders were made by consent on 16 May 2007 providing for the children to live with the mother nine days per fortnight and with the father for the remaining five days.
In April 2008 the father broke into the mother’s house with an axe, threatened the mother, and caused injury to a friend of the mother. The children were in the house at the time. The husband was subsequently charged with various offences. In April 2008 the Magistrates Court heard the father’s bail application along with the mother’s family law application and her application for an intervention order. The mother was granted a two year intervention order and the father’s time with the children was suspended. Orders were also made for the children to attend counselling and for the appointment of an Independent Children’s Lawyer.
After several procedural hearings, the proceedings were transferred to the Federal Magistrates Court and orders were made by consent on 12 August 2008 for the father to spend time with the children at a contact centre. At that time the mother was also granted her application to relocate.
In August 2008 the father was convicted of aggravated burglary and recklessly causing injury and later sentenced to two years imprisonment with a non-parole period of 10 months. The father was imprisoned from September 2008 until July 2009, after which he was on parole for 14 months.
On 12 December 2008 final orders were made, inter alia, discharging all previous orders, and providing by consent for the mother to have sole parental responsibility for the children and for the children to live with her. Those orders did not provide for the father to spend time or communicate with the children.
On 24 January 2011 the father filed an initiating application in the Federal Magistrates Court seeking final orders that all previous parenting orders be discharged, that the parties have “joint parental responsibility” regarding major long-term issues in relation to the children, and that the children live with the mother and spend time and communicate with the father “as determined appropriate by the Court”. The father also sought interim orders providing for him to spend time with the children at a contact centre for two hours per fortnight and for him to have telephone communication with them one evening per week. Lastly, the father sought orders for the appointment of an Independent Children’s Lawyer and the preparation of a family report.
The mother filed a response on 7 March 2011 seeking that the father’s application be dismissed and that the father pay the mother’s costs.
The matter first came before Walters FM in a duty list on 8 March 2011, where counsel for the mother advised that he wished to present submissions to the effect that the father’s application be dismissed ab initio, in accordance with the principle stated in Rice and Asplund (1979) FLC 90-725, and counsel for the father indicated that he would oppose such an application. The hearing was adjourned to 11 March 2011, and after hearing submissions, Walters FM delivered brief ex tempore reasons to be later followed with more detailed reasons for judgment. Those reasons were delivered on a date that has not been identified.
The father filed his Notice of Appeal on 5 April 2011 and later filed an amended Notice of Appeal on 28 June 2011.
The father continues not to be able to spend time or communicate with the children.

Reasons for judgment of the Federal Magistrate

The Federal Magistrate commenced his reasons for judgment by setting out the background of the parties and of the proceedings.
His Honour then identified the relevant law, by citing extracts from Rice and Asplund (1979) FLC 90-725 (at 78,905-6), Marsden & Winch [2009] FamCAFC 152 (at paragraphs 48 to 50, 57 and 58), SPS and PLS (2008) FLC 93-363 (at paragraphs 47 and 48), and Reid & Lynch (2010) FLC 93-448 (at paragraph 238).
The Federal Magistrate went on to set out extracts from the family report prepared by Dr K, a clinical and forensic psychologist, dated 10 June 2008, as referred to by counsel for the father. In summary, Dr K at that time found the father was having a pathological grief reaction to the end of his relationship with the mother and that there was evidence of ruminations and obsessive thinking about the mother. Whilst the father was working through those issues in his psychological treatment, Dr K concluded that the father remained at risk for stalking behaviour and that he would need to continue that treatment. The Federal Magistrate noted that the final orders were made some six months after the family report.
The Federal Magistrate then outlined the evidence of Mr P, a clinical psychologist and psychoanalyst upon whom the father had been attending and who prepared a report dated 7 February 2011. In summary, Mr P found the father to be an intelligent and insightful man who suffered from a “long standing depressive illness associated with significant self-doubt and poor self-esteem”, which was aggravated by the difficulties in his marital relationship. Mr P reported that the father was grief struck by the absence of his children from his life and that he dealt with his tendency to ruminate about this by tiring himself through work and by the excessive use of alcohol. However, the father had reported to Mr P that he had been abstaining from alcohol use during the week, and Mr P observed that the father demonstrated an increased capacity to mourn the loss of his marriage and separate the issues with his ex-wife from his relationship with the children. Mr P also reported the father’s wish to continue therapy for the benefit of his relationship with the children.
The Federal Magistrate noted that Mr P’s report approached all issues solely from the father’s point of view and not from the point of view of the children’s best interests. It also made no mention of the incident in April 2008 or of the family report. His Honour found Mr P’s report to suggest that the father’s use of alcohol remained a problem and that his progress in mourning the loss of his marriage and accepting the fall of his ideals in relation to marriage were only recent and “an important marker” in the father’s progress. In his ex tempore reasons, the Federal Magistrate stated that “the report clearly leaves it open for the Court to conclude that the father has not fully accepted the final breakdown of his relationship, and that he has not yet dealt with the bitterness and confusion that has characterised his relationship with his ex-wife”.
His Honour also expressed concern about the father’s evidence in his affidavit sworn on 19 January 2011, that “Mr P has not recommended that I require any further treatment, medication or counselling” being a “gross distortion” of Mr P’s report. Indeed, the report indicates the father is “sorely in need of ‘continuing therapy’”.
Turning to consider the mother’s response to the father’s application, the Federal Magistrate outlined the mother’s evidence in her affidavit sworn

4 March 2011. It was the mother’s evidence that following the incident in April 2008 the children had counselling for “something less than a year”, that she continued with counselling for “a lengthier period”, that the prospect of further court proceedings had caused her “great distress”, and that she had been suffering from nightmares and “a general state of anxiety” which affected her work, social and private life. The mother deposed to her lack of confidence that the father had acquired insight into the gravity of his actions, and expressed her belief that a resumption of the children’s relationship with the father would cause them severe trauma and impact upon her parenting and wellbeing.
A report by the mother’s psychologist, Ms W, was annexed to the mother’s affidavit. It was Ms W’s evidence that the mother’s symptoms were consistent with “a diagnosis of Post Traumatic Stress Disorder with secondary symptoms of Major Depression – moderate type” and that forced exposure to the father during legal proceedings caused the mother an “unacceptably high level of anxiety and trauma” which “impacts on her ability to engage in activities of daily living”.
His Honour noted that whilst the evidence of both the mother and Ms W had not been tested, the father had not in fact suggested that the mother would “not be traumatised by the prospect of either further litigation…or the children actually spending time with him”, nor that the children “have the capacity to cope…with some form of reintroduction of contact with him”.
The Federal Magistrate was of the opinion that the father’s case was “based on his own needs, and not those of the children”, or in other words “any relevant change of circumstances could only be regarded as a change of his own circumstances” rather than a change in the circumstances of the mother and children. After referring to paragraph 59 of the Full Court’s decision in Marsden & Winch, the Federal Magistrate determined that the father had “wholly failed to demonstrate (whatever the relevant test might be) that such amelioration [in the underlying causes of his previous behaviour] has actually occurred and that his behaviour is unlikely to be repeated”. His Honour said this at paragraph 44:
The “underlying causes” of the father’s previous behaviour clearly and inevitably had their genesis in the father’s dangerously bitter, possessive, and judgemental attitude to the mother. The evidence currently available to the Court – even ignoring the evidence presented by the mother – reveals that that attitude remains, and that the father is struggling (apparently unsuccessfully) to change it.
The Federal Magistrate then turned to consider the best interests of the children in allowing the proceedings to progress and concluded that “[n]o prima facie case of changed circumstances beyond the mere fact of the father having now completed his term of imprisonment and parole has been established, and that transition alone does not comprise a sufficient change of circumstances to justify embarking on a hearing”. His Honour also determined that the father’s application sought a “very significant change”, not only by way of spending time and communicating with the children but also seeking “joint parental responsibility”, which his Honour interpreted to mean equal shared parental responsibility. The Federal Magistrate was of the view that as the presumption of equal shared parental responsibility had been rebutted by the father’s “violent and antisocial behaviour”, the father had “no chance whatsoever” of demonstrating to the Court that such an order would be in the children’s best interests.
In his ex tempore reasons, the Federal Magistrate acknowledged that if the Court only needed to direct its attention to the father’s affidavit evidence that he no longer required any further treatment, medication or counselling, then “the father might have come close to persuading the Court to reopen the issue” or “to obtain a family report on a limited basis – for the purpose of ascertaining what the children think about re-establishing some form of contact with their father”. However, his Honour determined that the circumstances which had to change in this case “stem from attitudinal problems, or psychological or emotional or psychiatric problems, suffered by the father”, and considering counsel for the mother’s criticisms of Mr P’s report, his Honour accepted the need for the father to deal with his issues so that the children and the mother could feel safe. The Federal Magistrate noted that for the case to be re-opened in the future, the father would need to demonstrate that the concerns set out by the mother in her evidence and by Dr K in the family report were “no longer of the weight or significance that they once were”.
The Federal Magistrate then set out his ex tempore reasons which were delivered on 11 March 2011 (and which have been incorporated in the above summary).
In relation to costs, his Honour first outlined the relevant statutory provisions, before considering the factors prescribed under s 117(2A) of the Family Law Act 1975 (Cth). Beyond the fact that the father was self-employed and earning a modest income, and that neither party was in receipt of Legal Aid, his Honour was not aware of either party’s financial circumstances. The Federal Magistrate had no criticism of either party in relation to their conduct as a litigant, and noted that the proceedings were not necessitated by the failure of a party to comply with previous orders of the Court. However, the father was wholly unsuccessful in his application. The Federal Magistrate also noted, pursuant to ss 117(2A)(g), that the father had failed to overcome the threshold questions relevant to the requirements set out in Rice and Asplund and as such it was similar to the father failing to establish a prima facie case.
Ultimately, the Federal Magistrate determined that an order for costs was justified and that the amount sought of $2,000 was well within the scale. Having regard to the father’s uncertain financial position, the Federal Magistrate proposed to allow him six months to make the payment.

Orders made on 11 March 2011

Walters FM made the following orders:
(1) The father’s application filed 24 January 2011 be dismissed.
(2) The father pay the mother’s costs fixed in the sum of $2000.00 – such costs to be paid by not later than 11 September 2011.
The father appeals against both of these orders.

Grounds of appeal and orders sought

The father’s grounds of appeal as contained in his Amended Notice of Appeal filed 28 June 2011 are as follows:
1.      The learned Federal Magistrate erred in law by applying the rule in Rice and Asplund to the Appellant’s Application. His Honour should have found that the rule had no application in the case.
2.      If the rule in Rice and Asplund did apply to the Appellant’s Application, then the learned Federal Magistrate erred in law by dismissing the Application pursuant to the rule. His Honour should have found that a significant change of circumstances had occurred.
3.      If the rule in Rice and Asplund did apply to the Appellant’s Application, then the learned Federal Magistrate erred in law by dismissing the Application as a preliminary matter. His Honour should have ordered the preparation of a family report.
The father seeks that the appeal be allowed, that the orders of Walters FM made on 11 March 2011 be set aside and that the matter be remitted to the Federal Magistrates Court for re-hearing. The father also seeks various procedural orders relating to the appointment of an Independent Children’s Lawyer and the preparation of a family report.

Discussion

Ground 1

This ground can be disposed of quite quickly.
The argument is that the issue of the children spending time and communicating with their father has never been finally determined. Thus, there was no question of looking to re-litigate a recently decided parenting issue, and in fact, as the argument goes, the Federal Magistrate on 12 December 2008 left the issue open.

However, the fact of the matter is that the orders made on 12 December 2008 were final orders and they included an order discharging all previous orders. Thus, that determined the issue of time spent and communication given that there was in force an order for supervised time subject to counselling and the imprimatur of the Independent Children’s Lawyer. Indeed, that previous order which was made on 12 August 2008, and the application of the wife to discharge it was specifically raised with the Federal Magistrate in the context of finalising the matter.
The Federal Magistrate did comment that on a practical level, given the husband was in gaol and not due to be released for over six months, there was not much else that could happen at that stage, but that does not take away the force of the order discharging all previous orders being a final order.
It is beyond doubt that that order was not made after a hearing on the merits, but that is not required to enliven the application of the principle in Rice and Asplund. For example, that principle applies as equally to consent orders as it does to orders made after a defended hearing.
Thus, there is a clear basis for the application of the principle in Rice and Asplund in this case and his Honour did not err in that regard.
I also observe that the husband’s application filed on 24 January 2011 was not limited to seeking an order that the children spend time and communicate with him; it also sought an order discharging the order that provided for the wife to have sole parental responsibility for the children, and in lieu thereof an order that there be “joint parental responsibility”. That equally enlivens the application of the principle in Rice and Asplund.

Ground 2

The issue raised by this ground is whether all that is required for the hearing to proceed is a change of circumstances or whether it is something more. The husband’s counsel argued that there was a change of circumstances, namely the husband was no longer incarcerated, and that that was enough to enable the hearing to proceed. Further, it is put that that was a significant change given that the reason why the husband did not previously pursue an order that the children spend time or communicate with him was because he was in gaol and would be there for at least another six months.
Attractive as that argument is, it misses the point. There are references in the authorities that appear to support the argument, and even in Rice and Asplund itself. For example, Evatt CJ said this at 78,906:
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.
However, it is beyond doubt that the issue is not just whether there has been a change of circumstances but whether the change of circumstances are sufficient to require the Court to again address the particular parenting issue (Miller & Harrington [2009] FamCAFC 12, Marsden & Winch [2009] FamCAFC 152, and Reid & Lynch (2010) FLC 93-448.
As was said by the Full Court in Marsden and Winch at 48:
… 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.
Further, the Full Court said (at 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 a 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.
Finally, as Warnick J said in SPS and PLS (2008) FLC 93-363, at 48:
…
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order …
There is of course no denying the fact that the husband being in gaol was an important consideration in Federal Magistrate Riethmuller making his orders on 12 December 2008, but as is apparent from the authorities referred to above, not only was Federal Magistrate Walters not bound by any reasons from the earlier decision, but the issue still remained as to what was in the best interests of the children. That clearly brings into play whether the underlying causes of the husband’s behaviour principally in 2008 and which led to his incarceration have been successfully dealt with. Clearly, the husband thought that seeing

Mr P and presenting a report from him would provide sufficient evidence of this for the Federal Magistrate. Unfortunately though this was not the case, and as is apparent his Honour found that he could not be satisfied that those underlying causes had been adequately addressed and that there was no risk of the husband offending again in the same way.
I also observe that just because the issue of the psychological health of the father was not aired at length before Federal Magistrate Riethmuller in December 2008 does not mean that it was not a very real basis, as much as the husband’s incarceration, for not only the wife seeking the orders that she did, but also the Federal Magistrate making those orders. This is of course why, despite the husband before Federal Magistrate Walters seeking to rely heavily on the mere fact that he was now out of gaol, he also looked to rely on an alleged improvement in his psychological health.
In a crucial passage in his Honour’s judgment he said this:
44.In the present case, the Final Orders were made by consent, but their effect is clear. Further, very strong evidence contraindicating any contact between the father and the children was available to the Court at the time the Final Orders were made. Even so, the father’s case does not rely on the passage of time as comprising a sufficient change of circumstances to justify embarking upon a fresh hearing; the asserted change of circumstances comprises the father’s release from incarceration and “some amelioration in the underlying causes of the (father’s previous) behaviour, such that it is unlikely to occur in the future”. Unfortunately for the father, however, and as indicated in the ex-tempore Reasons set out below, the father has wholly failed to demonstrate (whatever the relevant test might be) that such amelioration has actually occurred and that his behaviour is unlikely to be repeated. The “underlying causes” of the father’s previous behaviour clearly and inevitably had their genesis in the father’s dangerously bitter, possessive, and judgemental attitude to the mother. The evidence currently available to the Court – even ignoring the evidence presented by the mother – reveals that that attitude remains, and that the father is struggling (apparently unsuccessfully) to change it.
His Honour appropriately addressed and considered the questions arising from the Full Court decision in Marsden & Winch and referred to above. In particular, his Honour spent some time in looking at the nature and degree of changes sought to the earlier order and concluded, correctly in my view, that “the father’s application seeks a significant change”, and in the circumstances there was “no (or no reasonable) likelihood of the Final Orders being varied … as a result of a new hearing.”
In the circumstances there is no merit in this ground of appeal.

Ground 3

Although the apparent challenge here is to the Federal Magistrate dismissing the application as a preliminary matter, the real complaint is that the Federal Magistrate should have at least ordered a family report before considering whether to dismiss the application.
It is put that there needed to be “current objective evidence before the Court as to the children’s ‘needs, their attitudes and wishes’”, and a family report would provide that evidence.
However, this overlooks that the primary reason for his Honour dismissing the application was because the husband had not established that he had successfully addressed the underlying causes of his previous behaviour, and changed his attitude, and without that, it was not in the best interests of the children to allow the proceedings to continue. A family report as to the needs, attitudes and wishes of the children would not have altered that finding, and thus it was clearly appropriate that that step not be taken yet.
I also observe that there was no evidence put before the Federal Magistrate to suggest that a report as to the needs, attitudes, and wishes of the children would demonstrate a sufficient change of circumstances to justify embarking on a full hearing.
Of course, it would have been difficult for the husband to present such evidence given that he had not seen the children for some time, but that just highlights the children’s needs, attitudes and wishes were not in issue; to repeat it was the attitude and behaviour of the husband that were in issue.
There is no merit in this ground of appeal.

Conclusion

Having found no merit in any ground of appeal the appeal must be dismissed.

Costs

At the conclusion of the hearing I received submissions as to the costs of the appeal.
If the appeal was unsuccessful Mr Ambrose sought an order for costs on behalf of the wife. Mr Curtain for the husband rightly conceded that in that event such a costs order would be appropriate. Accordingly, I propose to order that the husband pay the wife’s costs of and incidental to the appeal.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on

9 March 2012.

Associate:

Date: 9 March 2012