Lund & Lund
[2018] FamCAFC 112
•25 June 2018
FAMILY COURT OF AUSTRALIA
| LUND & LUND | [2018] FamCAFC 112 |
| FAMILY LAW – APPEAL – PARENTING – Where the trial judge appropriately applied the principle in Rice and Asplund (1979) FLC 90-725 – Where the trial judge took the evidence of the appellant at its highest – Where the trial judge took into account the relevant factors in s 60CC of the Family Law Act 1975 (Cth) and gave them adequate weight – Where the trial judge provided adequate reasons for her decision – Where there is no merit in the grounds of appeal – Appeal dismissed. FAMILY LAW – COSTS – Where the respondents sought costs in the event that the appeal was unsuccessful – Where the appellant opposed such an order on the basis of her poor financial circumstances – Where impecuniosity is not a bar to an order for costs being made when there are other circumstances justifying such an order – Costs ordered as sought by the respondents. |
| Family Law Act 1975 (Cth) ss 60CC and 117 Federal Circuit Court of Australia Act 1999 (Cth) s 17A |
| Bennett and Bennett (1991) FLC 92-191 Carriel & Lendrum (2015) 53 FamLR 157 D & D (Costs) (No. 2) (2010) FLC 93-435 Gronow & Gronow (1979) 144 CLR 513 Poisat & Poisat (2014) FLC 93-597 Rice and Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 Walter & Walter [2016] FamCAFC 56 |
| APPELLANT: | Ms Lund |
| RESPONDENTS: | Mrs S & Mr D Lund |
| FILE NUMBER: | MLC | 1495 | of | 2011 |
| APPEAL NUMBER: | SOA | 77 | of | 2017 |
| DATE DELIVERED: | 25 June 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 26 March 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 September 2017 |
| LOWER COURT MNC: | [2017] FCCA 2643 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Strong |
| SOLICITOR FOR THE APPELLANT: | Victoria Legal Aid |
| COUNSEL FOR THE RESPONDENTS: | Dr R Smith |
| SOLICITOR FOR THE RESPONDENTS: | Tait Legal |
Orders
The time for the appellant mother to file a summary of argument be extended nunc pro tunc to 26 February 2018.
The appeal be dismissed.
The appellant mother pay the costs of the respondent grandparents of and incidental to the appeal fixed in the sum of TEN THOUSAND DOLLARS [$10,000].
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lund & Lund has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 77 of 2017
File Number: MLC 1495 of 2011
| Ms Lund |
Appellant
And
| Mrs S & Mr D Lund |
Respondents
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 8 January 2018, Ms Lund (“the mother”) appeals against an order made on 26 September 2017 by Judge Harland. The appeal is opposed by Mrs S and Mr D Lund (“the maternal grandparents”).
The order appealed against dismissed the application filed on 29 September 2016 by the mother seeking “access” and a “family report”.
The mother had filed an Amended Application on 3 February 2017 which sought more detailed orders, namely that the parties have equal shared parental responsibility for the two children, that the children live with the maternal grandparents and they spend time with the mother. A number of interim orders were also sought including the provision of a family report, the appointment of an Independent Children’s Lawyer (“ICL”), the undertaking of drug screens by the mother, and interim supervised time at a contact centre.
Strictly her Honour should have dismissed the Amended Application instead of the Initial Application, but that is not an issue raised in this appeal, and need not trouble this Court. There is no doubt as to the application her Honour was dealing with, and that her Honour dismissed the effective application that was before the Court.
On 27 February 2018 the mother filed an application in an appeal seeking an extension of time to file her summary of argument on 26 February 2018. That application was not opposed by the maternal grandparents, and I will make an order accordingly.
Background
The two children the subject of the application have both been cared for by the maternal grandparents since their births as a result of the mother’s significant substance abuse, and mental health issues.
Historically, the Department of Health and Human Services received a number of reports concerning the mother, and took out protection orders in 2010. The Department then concluded its protective involvement in December 2011, satisfied to leave the children in the care of the maternal grandparents ([3] and [4]).
Orders were made in the Federal Magistrates Court (as it was then known) on 6 March 2012, granting the maternal grandparents sole parental responsibility for the children, providing that they live with the maternal grandparents, and allowing the mother to spend supervised time with the children.
After time with the children ceased in 2014, the mother filed a series of applications for parenting orders which were all dismissed, namely an Application filed on 12 February 2015 was dismissed on 9 June 2015, an Application Alleging Contravention filed on 22 February 2015 was dismissed on 17 March 2015, and an Application filed on 6 June 2016 was struck out on 27 June 2016. Significantly, on 9 June 2015, an order was made dismissing the order providing for the mother to spend time with the children. That left no parenting order in her favour in place.
As for the application filed on 26 September 2016, that was adjourned and eventually came before the primary judge on 7 February 2017. On that day, her Honour adjourned the application to the duty list commencing in the week of 25 September 2017, “to enable the mother to put on further evidence to address the very serious concerns that [were] raised by the maternal grandmother, most particularly in the affidavit she filed on 18 January 2017” ([6]).
Those concerns related to the mother’s abuse of illegal drugs and her mental health issues, and it is necessary to set out the orders that her Honour made in full, as follows:
BY CONSENT IT IS ORDERED
1.That all application be adjourned to the Duty List at Warrnambool on 25/09/2017.
2.That the mother make, file and serve any further Affidavit she indents to rely upon no later than 15/09/2017 and the Respondent maternal grandmother to make, file and serve any further Affidavit she intends to rely upon no later than 21/09/2017.
3.That the mother undertake random drug screens on dated to be requested by the Department of Corrections at least on a monthly basis.
4.That the mother provide copies of the results of such testing no later than 7/9/2017.
5.That the mother continue to attend upon her General Practitioner Dr. S, Alcohol and Drug Service and follow their reasonable recommendations and to their treatment of her mental health and her previous use of drugs.
IT IS NOTED:
A.That the mother is currently service a Community Corrections Order and a condition of such Order is that she undergo supervised drug screens.
B.The Department of Corrections will not release the results of such testing without a Subpoena to do so.
C.The Department of Corrections provide a redacted copy of the results of the drug tests on behalf of the Applicant grandmother.
D.That if the Respondent mother fails to comply with Orders 3, 4 and 5 of these Orders and fails to produce 12 months of clean drug screens from August 2016 the Applicant Grandmother will be applying for the mother’s application to be dismissed at the next Court date and the Grandmother will be excused from attending Court on that date.
It was the maternal grandparent’s case before her Honour in September 2017 that the mother did not comply with all of those orders, and in particular, she had not provided “12 months of clear screens”, there being no screens provided for June, July, August or September 2017. Further, on 29 March, 5 April, 26 April and 11 May 2017, the mother tested positive for benzodiazepines, and on 28 February 2017 cannabis and enzodiazepines were detected. There was also no report from the General Practitioner that she had consulted over many years previously.
The mother’s case before her Honour was that despite not having complied with all of the orders made, she had turned her life around such that it was appropriate to allow the proceedings to continue, including providing for a family report and the appointment of an ICL.
Her Honour identified the latter issue as the primary issue to be determined by her, and as her Honour said in [10]:
…the dilemma that I have is whether or not the mother has shown enough progress for me to be satisfied that these proceedings should continue and if it is in the children’s interests that they should become more involved in the proceedings in order for them to express their views.
In the end result her Honour was not satisfied that the mother had yet “turned her life around”, despite having made “some progress” ([13]).
The Appeal
The Amended Notice of Appeal raised four grounds of appeal. Ground 1 alleged that the mother was denied natural justice and procedural fairness amounting to a miscarriage of justice, and Ground 2 alleged that the primary judge had erred in making factual findings. However, both of these grounds were abandoned, leaving Ground 3 and Ground 4.
Ground 3
The learned Federal Circuit Court Judge erred in law in acting upon a wrong principle and/or in failing to properly exercise their discretion in the following manner:
(a) in failing to properly address whether there were reasonable prospects of success on the Appellant mother’s application;
(b) in finding that the main question the court needed to determine was whether or not it was to the benefit of the children to have the proceedings continue further; and
(c) either failed to have regard to or give adequate weight to the provisions of s 60CC of the Family Law Act 1975.
This ground is framed on the basis that the issue before her Honour was whether the application should be summarily dismissed pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth). However, although her Honour did dismiss the application on a summary basis, it is by no means clear that her Honour was applying s 17A. For example, the maternal grandparents submit that her Honour was applying the rule in Rice and Asplund (1979) FLC 90-725, and considering whether there was a sufficient change of circumstances to warrant the proceedings being allowed to continue.
Unfortunately, nowhere does her Honour describe which of these approaches she was taking. However, on balance it would seem that her Honour was considering whether there was a sufficient change of circumstances, i.e., whether the mother had been able to turn her life around, and whether that change demonstrated that it was in the best interests of the children for the proceedings to continue; in other words, applying the rule in Rice and Asplund.
That rule, as explained by Evatt CJ in Rice and Asplund is as follows (at 78,905-78,906):
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman [(1976) FLC 90-140], at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Thus, at a hearing such as occurred here, namely a preliminary hearing, the search is on for a sufficient change of circumstances to warrant further litigation, and it can readily be seen from the transcript and her Honour’s reasons, that that was what her Honour was doing. Thus, complaints that her Honour had acted “upon a wrong principle”, failed “to properly address whether there were reasonable prospects of success”, and erred “in finding that the main question the court needed to determine was whether or not it was to the benefit of the children to have the proceedings continue further”, are misconceived and cannot succeed.
I note though that the mother’s counsel submitted that even if this is a Rice and Asplund case, her Honour still erred in failing to take the mother’s evidence at its highest. Indeed, during the course of the hearing of the appeal, this was identified as the single most important issue in the appeal.
It is correct to suggest that the applicant’s evidence should be taken at its highest in cases such as this (e.g. see Walter & Walter [2016] FamCAFC 56, at [51]), but I suggest that her Honour did comply with that requirement. It was the mother’s own evidence that she had not complied with all of the orders made on 7 February 2017, namely that she had failed to produce all of the required drug screens, and with those that she had produced she had tested positive for cannabis and benzodiazepines. Further, in relation to her mental health, the mother conceded that she had sent an abusive message to the father of one of the children in the period leading up to the September hearing. That message is quoted at Transcript 26.9.17, page 5 lines 8 – 10, and her Honour refers to it at [11] and [14].
The requirement to take the applicant’s evidence at its highest, does not mean that despite the mother’s own evidence to the contrary the Court should simply accept the mother’s assurances that she is progressing well, and that she has turned her life around.
The mother did present a letter from Domestic Violence Services setting out that she had “begun her education on domestic violence”, and had “made a solid commitment to complete and has begun to work through her history”. However, her Honour plainly accepted this evidence and recorded that, “it is clear that the mother has made some progress”, but equally recognised that “although the mother has begun to turn her life around, it is early days” ([13] my emphasis).
There was also an issue about the mother’s failure to produce a report from her long-standing General Practitioner. She did produce a report from another doctor from the same practice, but there was no explanation as to why the report was not from her usual General Practitioner, and importantly the letter from the doctor did not address the positive results in her drug screen for benzodiazepines.
Plainly, it was open on the evidence, including taking the mother’s evidence at its highest, to find that there was no change of circumstances sufficient to justify the continuation of the proceedings. Her Honour said this:
12.…Having considered the material and history of the matter, in my view, whilst it is clear the mother has made some progress, she has not managed to turn her life around, as much as she claims.
13.This matter has been in and out of Court since 2011. I think although the mother has begun to turn her life around, it is early days. She is keen not to focus on the past conduct that the grandmother refers to in her affidavit, but it is necessary for the Court to take that into account. The mother has a long, disturbing, concerning history. Whilst it is clear that the mother has made some progress, it is also clear that she has not complied fully with the orders made in February 2017 and has not provided some important evidence with respect to her progress and also her involvement with counselling and other supports.
It is also relevant to note that the mother was well and truly put on notice at the hearing on 7 February 2017, that if she failed to comply with the orders made to give her the opportunity to demonstrate a sufficient change of circumstances, then her application would be dismissed. That was clearly conceded by her counsel at the time (Transcript 7.2.17, page 9 lines 28 – 41), and it is also reflected in the notation to the orders made on 7 February 2017.
At the hearing in September 2017, the mother’s counsel conceded that the mother had failed to comply with the orders made on 7 February 2017.
In Ground 3(c), the mother complains that her Honour failed to have regard to or give adequate weight to the provisions of s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
As pointed out by counsel for the maternal grandparents, there is doubt that an order dismissing an application is a parenting order (Carriel & Lendrum (2015) 53 FamLR 157; Poisat & Poisat (2014) FLC 93-597; SPS & PLS (2008) FLC 93-363), and if it is not such an order then this ground must fail. However, as is equally clear, when applying the rule in Rice and Asplund the relevant enquiry is whether it is in the best interests of the children for there to be further litigation, and that it is unnecessary to discretely address many of the factors in s 60CC (Carriel & Lendrum [56] – [58]).
Plainly, her Honour considered the best interests of the children on this basis, and as submitted by counsel for the maternal grandparents, although her Honour did not specifically address each factor in s 60CC, her Honour did consider those factors which were relevant. For example, s 60CC(2)(a) in [5], s 60CC(2)(b) throughout the reasons, including at [3], [4], [12], [13] and [14], s 60CC(3)(a) in [4] and [5], s 60CC(3)(b) in [3] – [5], s 60CC(3)(d) in [4], and s 60CC(3)(l) in [12] (see paragraphs 44 – 49 of the maternal grandparent’s amended summary of argument filed on 9 March 2018).
In the alternative, in Ground 3(c), the mother alleges that her Honour gave inadequate weight to the relevant factors in s 60CC. That is a difficult challenge to maintain, and requires the mother to demonstrate that her Honour was plainly wrong, her decision being no proper exercise of her discretion. Further, it is never enough that an appellate court would have reached a different conclusion when no error of law or mistake of fact is present (Gronow & Gronow (1979) 144 CLR 513). Here there is nothing to suggest her Honour failed to accord adequate weight to the relevant factors in s 60CC, and this complaint has no merit.
Ground 4
The learned Federal Circuit Court Judge erred in that they [sic] made errors of Law which include inter alia a failure to give adequate reasons for the decision reached.
It is the duty of each judge to provide reasons for his or her decision. The question of the adequacy of those reasons depends on the circumstances of each case, but what is necessary is for the reasons to reveal the path by which the judge arrived at the decision (Bennett and Bennett (1991) FLC 92-191).
Although this ground is framed in general terms, in the summary of argument two specific issues are raised. First, it is said that the primary judge failed to accept the mother’s evidence at its highest, and did not provide any reasons for failing to do that.
Secondly, a complaint, it seems, that her Honour made reference to a report from the Department of Health and Human Services.
As to the first issue, this is not a complaint that can succeed. As referred to above, her Honour did take the evidence at its highest, including the concessions made, and tempered by the objective evidence.
In any event, taking the reasons for judgment as a whole, the pathway to her Honour’s decision is clear, and those reasons cannot be described as inadequate. There is of course no specific indication as to on what basis her Honour was approaching the case, but that becomes apparent once her reasons are analysed.
The second issue is also readily dismissed. First, the ground of appeal alleging a failure to afford natural justice and procedural fairness was abandoned, and it is impossible to read Ground 4 as a ground raising a complaint in relation to a report referred to by her Honour. This ground is about a lack of reasons, and reference to a report has nothing whatsoever to do with that. Secondly, the document was referred to during the hearing before her Honour, and no objection was taken.
There is no merit in this ground of appeal.
Conclusion
Given that neither ground of appeal has any merit, the appeal must be dismissed.
However, I cannot leave this appeal without commenting on its utility. If it had been successful, the order would have been set aside, and the matter remitted for rehearing. A primary purpose of that rehearing would have been to consider whether the mother had “turned her life around” such that the children spending time with her should be addressed.
As is plain from her Honour’s reasons, her Honour recognised that the mother had made some progress in turning her life around, but it was early days. Thus, her Honour was leaving it open to the mother to continue her progress, and then return to court once that progress was complete. For the mother to take that up would have been a far better approach than instituting a groundless appeal.
Costs
At the conclusion of the hearing submissions were made as to the question of costs, depending on the result of the appeal.
In the event the appeal was unsuccessful, the maternal grandparents sought an order for costs fixed in the sum of $10,000. That application was opposed by the mother on the basis of her poor financial circumstances.
Section 117 of the Act governs the question of costs, and for there to be an order there must be circumstances justifying the same (s 117(2)). Here that circumstance is the mother has been wholly unsuccessful in her appeal (s 117(2A)(e)).
Certainly, the respective financial circumstances of the parties are to be taken into account (s 117(2A)(a)), but there is ample Full Court authority that impecuniosity is not a bar to making an order for costs when there are other circumstances that justify the order being made (D & D (Costs) (No. 2) (2010) FLC 93-435). Plainly that is the case here, and there will be an order as sought by the maternal grandparents.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 25 June 2018.
Associate:
Date: 25 June 2018
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