Lysons & Lysons
[2021] FamCAFC 59
•28 April 2021
FAMILY COURT OF AUSTRALIA
Lysons & Lysons [2021] FamCAFC 59
Appeal from: Order made by a judge of the Federal Circuit Court of Australia on 12 November 2020 Appeal number(s): NOA 82 of 2020 File number(s): BRC 12213 of 2016 Judgment of: TREE J Date of judgment: 28 April 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge made interim parenting orders following a discrete hearing in relation to the rule in Rice and Asplund (1979) FLC 90-725 – Where the primary judge found insufficient change in circumstances warranting re-litigation of the parenting orders – Where no occasion for making further interim parenting orders arose – Where the primary judge pre-determined the question of whether an unmade application for relocation would comprise a sufficient change in circumstance to warrant further litigation – Adequacy of reasons – Apprehended bias – Procedural fairness – Where none of the grounds of appeal except the challenges to Orders 1 and 2 were made out – Appeal allowed in part – Orders set aside – No occasion for rehearing.
FAMILY LAW – APPLICATIONS IN AN APPEAL – Extension of time to file documents – Where leave was given to the appellant to file an Amended Notice of Appeal and Summary of Argument – Adduce further evidence – Where the appellant’s application to adduce further evidence did not support any ground of appeal – Application to adduce further evidence dismissed.
FAMILY LAW – APPEAL – COSTS – Where the parties sought costs certificates in the event the appeal was allowed and remitted for rehearing – Where no rehearing ordered – Order for costs certificates.
Legislation: Family Law Act 1975 (Cth) s 93A(2), 96
Family Law Rules 2004 (Cth)
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Constructions Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lysons & Lysons (2019) FLC 93-891; [2019] FamCAFC 29
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Vakauta & Kelly (1989) 167 CLR 568; [1989] HCA 44
Walter & Walter [2016] FamCAFC 56
Division: Appeal Division Number of paragraphs: 70 Date of hearing: 24 February 2021 Place: Cairns The Appellant: Litigant in person Counsel for the Respondent: Mr Baston Solicitor for the Respondent: Turnbull Mylne Counsel for the Independent Children's Lawyer: Mr Ashcroft Solicitor for the Independent Children's Lawyer: Dooley Solicitors ORDERS
NOA 82 of 2020
BRC 12213 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS T LYSONS
Appellant
AND: MS B LYSONS
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
28 APRIL 2021
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed 10 February 2021 be dismissed.
2.The appeal be allowed in part.
3.Orders 1 and 2 of the primary judge made 12 November 2020 be set aside.
4.Otherwise Appeal No. NOA 82 of 2020 be dismissed.
5.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
6.The Court grants to the Independent Children's Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children's Lawyer in respect of the costs incurred by him in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lysons & Lysons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Ms T Lysons (“the appellant”) and Ms B Lysons (“the respondent”) have been litigating over their four year old child, X, born in 2016 (“the child”) since he was six months old. By this appeal, one of them wishes to keep on doing so, in that it challenges orders made by a judge of the Federal Circuit Court of Australia on 12 November 2020, which, by applying the rule in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”), dismissed the appellant’s Initiating Application filed 11 April 2020.
The other parties to the appeal, namely the respondent and the Independent Children’s Lawyer (“the ICL”) oppose the appeal.
For the reasons which follow, the appeal will be allowed in part.
BACKGROUND
The appellant was born in 1988 and hence is currently aged 32 years. The respondent was born in 1980 and hence is currently aged 40 years. They began cohabitating in about June 2015, and in October 2015, with the assistance of a fertility group, the respondent fell pregnant with the child. The parties separated on a final basis in November 2016 when the child was four months old. The appellant first commenced proceedings in the Federal Circuit Court of Australia on 7 December 2016.
A trial of those proceedings was conducted in July 2018, after which, on 31 July 2018, final orders were made relating to issues of parental responsibility, living and time spending arrangements and other associated parenting orders. The respondent appealed those orders on 23 August 2018, which appeal succeeded in part, in that on 21 February 2019, the Full Court set aside certain orders in relation to the child’s religion, and orders restricting the parties from travelling with the child. Otherwise, the substance of the parenting orders made on 31 July 2018 was not disturbed.
Some 14 months later, on 11 April 2020, the appellant filed a further Initiating Application seeking to vary the final parenting orders by, inter alia, increasing the time she spent with the child, and also proposed orders in the event the respondent relocated with the child to another town.
That application came before the primary judge on 19 May 2020 and 4 August 2020, after which it was set down for a discrete hearing on whether there had been a sufficient change in circumstances to warrant the 31 July 2018 parenting orders being revisited.
On 12 November 2020, the primary judge determined that she was not satisfied there was material before her that warranted reconsideration of the 2018 parenting orders, and made the following orders:
1.In the event the child… is not provided to spend time with the [appellant], the respondent is to provide the [appellant] with a medical certificate.
2.In the event the respondent intends to relocate with the child to J Town, the respondent shall file and serve an application which will be accepted.
3.The initiating application filed on 11 April 2020 and all outstanding applications be otherwise dismissed.
From those orders the appellant appeals.
No written reasons for judgment were given by the primary judge, and before me the transcript of the hearing of 12 November 2020 was relied upon as comprising her Honour’s reasons.
APPLICATIONS IN AN APPEAL
The appellant filed two Applications in an Appeal. The first application was filed on 20 January 2021, and sought leave to file an Amended Notice of Appeal and an extension of time to file the appellant’s Summary of Argument and List of Authorities.
The respondent did not oppose leave being given to the appellant to file and rely upon her late filed documents, given that her Summary of Argument was only one working day late, and that pursuant to the Family Law Rules 2004 (Cth) (“the Rules”) the appellant had until the day her Summary of Argument was due to be filed to amend her Notice of Appeal. Although the respondent did not address the two further grounds of appeal in her Summary of Argument, she has been on notice of the appellant’s Summary of Argument and Amended Notice of Appeal since 18 and 20 January 2021 respectively, and is thereby not prejudiced. As such, on 24 February 2021, I gave leave to the appellant at the hearing of the appeal to rely upon her Amended Notice of Appeal and Summary of Argument.
The appellant’s second Application in an Appeal was filed on 10 February 2021, and sought leave to adduce further evidence in the appeal. That further evidence consists of court documents which have been filed in the first instance proceedings since the appeal has been on foot, namely:
(a)An Application in a Case dated 10 December 2020 in which the respondent sought costs from the appellant;
(b)An affidavit of the respondent’s solicitor sworn 10 December 2020 in support of the application for costs;
(c)A Response filed 3 February 2021 by the appellant resisting an order for costs, and seeking for the respondent’s lawyers to be referred to the Legal Services Commission; and
(d)An affidavit of the appellant filed 3 February 2021 in support of her Response.
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) gives this Court a discretion to admit further evidence on appeal. That power is subject to s 96 but is otherwise unfettered by legislation. However, case law has developed some well-known considerations which a Court will analyse as part of deciding whether to receive further evidence.
The principles relevant to the discretion were discussed in the High Court in CDJ v VAJ (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
The appellant submitted that the further evidence to be relied upon supports Grounds 6 and 7, and the orders sought in her Amended Notice of Appeal. Thus the proposed further evidence will be addressed when consideration is given to those grounds later in these reasons.
THE APPEAL GENERALLY
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The grounds of appeal articulated in the Amended Notice of Appeal are as follows:
1.The learned judge unreasonably and without explanation confined the scope of her enquiry at the interim hearing only to the issues of the Respondent’s relocation and her perception the Application was simply for more time with me, against the weight of authority, against the weight of evidence and against the principles of natural justice.
2.Order 1 was made against the weight of evidence.
3. Order 2 was made against the weight of evidence and against the weight of authority, and contrary to the principles of natural justice by failing to afford procedural fairness.
4.Order 3 was made against the weight of evidence and against the weight of authority.
5.The learned judge failed to provide adequate reasons.
6.Counsel and Solicitor for the Respondent led new evidence from bench at interim hearing and made misleading oral submissions, thereby giving rise to the learned judge erring on mistake of fact, apprehended bias, and resulting in a miscarriage of judicial discretion and justice.
7.The Appellant was denied natural justice by virtue of having been denied procedural fairness, adequate notice, the right to be heard and a fair hearing.
8.Her Honour erred at law in advising a person who states orders have been frustrated or not complied with must file a Contravention Application, rather than an Initiating Application, and that she cannot hear a Contravention Application.
9.Her Honour has erred at law when applying the principles of Rice & Asplund and associated authorities.
(As per the original)
When, as the appellant does here, grounds alleging judicial bias or procedural unfairness are advanced, they must ordinarily be dealt with first (Concrete Constructions Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at 581, 611-612 and 634).
Ground 6: Mistake of fact, apprehended bias, miscarriage of judicial discretion and justice.
It is the appellant’s contention under this ground that the counsel and solicitor for the respondent led new evidence, and made misleading oral submissions, from the bar table at the hearing, thereby causing the primary judge to make a mistake of fact, and giving rise to a reasonable apprehension of bias, which resulted in a miscarriage of justice.
The alleged new evidence and misleading submissions were said to be when the respondent’s counsel was comparing the distance between the appellant’s residence and the place to which the appellant contended that the respondent wished to relocate, as follows:
MR BASTON: No application for relocation, your Honour. My client hasn’t relocated, but – and this is an aside – the issue of her potential move to J Town – and here I pause.
…
MR BASTON: The same local authority area – was an issue at the trial before his Honour. My client at the trial expressed a desire at some stage in the future to potentially move to J Town. No order was sought at the trial, as I understand it, by the applicant mother to restrain that. His Honour dealt with that in the context of specifically delineating in his order, notwithstanding my client having sole parental responsibility, the kindergarten, the prep and the primary school and then the high school. My client doesn’t seek to vary that, seeks to comply with that, and if a move to J Town was contemplated – sorry – was effected would still give effect to the orders of his Honour.
And it was an issue of potential before Judge Vasta, but in broader terms we’re talking about areas in the C Region that were – that are close or nearby. It would be like someone moving from a northeast – a northwest suburb in Canberra to a southeast or west suburb in Canberra. They’re 25, 35 minutes apart, albeit by freeway, but they’re in the same locality. The court wouldn’t, in my respectful submission, take that as too much of an issue. This is alive in every parenting case. What the applicant is trying to do, in my respectful submission – and my client hasn’t moved – is try and re-litigate that issue when she didn’t seek to agitate it before his Honour, nor did she seek to agitate it in the appeal.
…
HER HONOUR: Well, I can make an order requiring the respondent to file an application to – for a move to J Town if she intends to move there. I may consider that is a change of circumstances. I may. Notwithstanding Mr Baston’s helpful analysis to Canberra, I’m actually learning about C Region and Brisbane as I sit here every day, but, be that as it may - - -
(Transcript 12 November 2020, p.3 line 15 to p.4 line 16)
Firstly, the appellant submitted that the submissions made by counsel for the respondent in relation to the distance between the suburbs were factually incorrect, submitting that it is a 45 minute drive from the child’s school to J Town, and further, that time did not account for periods of peak traffic. It is also said that the two locations are not in fact in the same local government area. It is not evident though, how either of these asserted mistakes of fact were material to the primary judge’s decision. Given that there was no application for relocation on foot, and the respondent’s proposed move was not imminent, the issue of relocation was not a live one for her Honour’s consideration.
Secondly, it was submitted by the appellant that the comparison the respondent’s counsel made between the parties’ residences (or more properly, the place where the appellant contended the respondent intended to relocate her residence to) with suburbs of Canberra (with which the primary judge is familiar), “invited apprehended bias”. This is said to be demonstrated when her Honour commented “[n]otwithstanding [counsel for the respondent’s] helpful analysis to Canberra…” The test for apprehended bias is well-known and it is not evident here that a fair minded lay observer might reasonably apprehend that, based on her Honour’s comment, the primary judge may not bring an impartial and unprejudiced mind to the decision (Johnson v Johnson (2000) 201 CLR 488 at [11]).
Further, and unsurprisingly, no application for disqualification was made by then counsel for the appellant (Vakauta & Kelly (1989) 167 CLR 568 (“Vakauta & Kelly”)).
As to whether the analogy to Canberra otherwise led to appealable error, it is significant to note that, ultimately Order 2 was in terms substantially contended for by counsel for the appellant, in that it required the respondent to seek the Court’s approval in advance for any relocation. How it can now be said that it was founded upon a mistake of fact, or comprised a miscarriage of justice, is very difficult to follow.
In this context the appellant sought to rely upon further evidence filed in the Federal Circuit Court after 12 November 2020. This material all relates to the respondent’s application for costs arising from the hearing of 12 November 2020. It does not inform this ground, nor Ground 7. The Application in an Appeal filed 10 February 2021 therefore must be dismissed.
Grounds 3 (and 2 and 4): Orders were made against the weight of evidence/weight of authority
Ground 3 asserts that Order 2 was made without affording the appellant procedural fairness, however, other challenges are also made under that ground, akin to those advanced under Grounds 2 and 4, which generally contend that all of the orders of 12 November 2020 (set out above at [8]) were made against the weight of the evidence, against the weight of authority, and/or contrary to the principles of natural justice. It is therefore convenient to deal with these grounds conjunctively, albeit dealing with the orders sequentially.
The appellant submitted that her evidence filed throughout the proceedings outlining her assertions that the respondent frustrates her ordered time with the child, did not fixate on medical issues suffered by the child, and thus Order 1 was made against the weight of the evidence. In addition, the appellant asserts that in making Order 1 as the primary judge did, it will be a further means for the time between the appellant and the child to be circumvented, although how that order would do so is quite unclear.
As submitted by the respondent, the primary judge was not satisfied the appellant had demonstrated a significant change in circumstances, however her Honour made Order 1 “in an effort to negate the need for any future applications regarding non-compliance with ‘time-with’ Orders by mandating that the [respondent] provide evidentiary proof as to why the [c]hild is unable to spend time with the [appellant]” (Respondent’s Summary of Argument filed 5 February 2021, paragraph 35).
That appears likely correct, however whilst Order 1 does not deal with any substantive matter or parenting of the child, and is in the nature of a machinery order, (and on one view, was manifestly favourable to the appellant, and unfavourable to the respondent) nonetheless, no opportunity for even tinkering with the extant final orders arose, unless and until the Rice and Asplund issue was determined favourably to the appellant. It was not so determined, and therefore no occasion for making Order 1 arose. This challenge to Order 1 therefore succeeds.
As to the challenges that procedural error, want of fairness, and factual or legal error infects Order 1, the appellant’s arguments are again very difficult to follow. The primary judge was seeking to narrow the justification for the respondent not making the child available to the appellant by focussing on medical incapacity. The fact that other grounds may have been in the past, or may be again in the future, put forward by the respondent to justify the child not being made available, does not speak to error of the kind asserted.
In relation to Order 2, the appellant submitted that the language of the order comprises a determination that, if an application for relocation is filed by the respondent in the future, it will be accepted as satisfying the rule in Rice and Asplund. Having done so, the appellant says she was denied procedural fairness in not being able to respond, place evidence before the Court, or make submissions regarding the order. Further, and significantly, it is submitted that the order was against the weight of the relevant authorities, and specifically what was said by the Full Court in the previous appeal between these parties in Lysons & Lysons (2019) FLC 93-891 (“Lysons”). At [77] of that decision, the Full Court stated “it is necessary to state that a judge in the position of the primary judge cannot simply oust well-settled principles of law such as the principle in Rice & Asplund (1979) FLC 90-725 or pre-emptively decide they will not apply”.
There is indeed some curiosity invited by her Honour’s opaque statement in Order 2, that any future application for relocation “will be accepted”. Two alternatives arise; the first is that her Honour was simply, and unnecessarily, saying that the application would be accepted for filing; the second is that her Honour was, improperly and contrary to authority, pre-determining that any such application would be deemed by the Court – whether constituted by the primary judge or another judge – to have demonstrated a sufficient change in circumstances to warrant the conclusion that such litigation was in the best interests of the child.
As I have already indicated, no separate reasons were articulated or published, and thus the transcript stands as the reasons for judgment.
As to that, her Honour said:
It is my view that that application will properly be dealt with and I can tell you now the application to relocate will be accepted and parties won’t be required to address the Rice & Asplund issue.
(Transcript 12 November 2020, p.10 lines 39–41)
It therefore seems plain that the primary judge was predetermining the question of whether a yet unmade application for relocation would comprise a sufficient change in circumstance to warrant further litigation in relation to that issue. That is, of course, the mirror of precisely what the Full Court in Lysons said cannot be done. Further, given the determination of insufficient change in circumstances to warrant the appellant’s attempt at further litigation, no occasion arose for the making of Order 2 at all. This challenge has merit.
As to Order 3, the appellant’s submissions read more as a challenge to the primary judge’s adequacy of reasons for dismissing her Initiating Application. That is because the appellant says there was a raft of other orders and amendments to the current orders contained in her Initiating Application that were not considered by the primary judge, and her Honour did not indicate her reasons for dismissing the balance of those orders. The respondent submitted that the primary judge clearly indicated the course she was intending to take, after having found she was not satisfied of a sufficient change in circumstances. I accept that is the case, and that, to the extent this ground challenges adequacy of reasons, the path by which her Honour arrived at the orders she made is able to be adequately discerned (Bennett and Bennett (1991) FLC 92-191 (“Bennett”)).
Save that some of the challenges to Orders 1 and 2 are established, Grounds 2, 3 and 4 otherwise fail.
Ground 7: Denial of natural justice
The appellant claims to have been denied natural justice by virtue of having been denied procedural fairness and due process at the 12 November 2020 hearing. In her submissions, the appellant makes complaints in relation to the first return date of 19 May 2020, alleging that her Honour did not have all the documents before her, and that the orders made for mediation that day were procedurally unfair. No appeal was brought against the orders made on 19 May 2020, and thus I do not propose to consider those submissions any further.
In relation to the interim hearing on 12 November 2020, the complaints consist of the appellant’s counsel being allegedly “lambasted” regarding the volume of the appellant’s affidavit material, the primary judge narrowing the issues to be determined and not considering the appellant’s Initiating Application in full, and that the primary judge rushed the hearing and counsel’s submissions.
As submitted by the respondent, the primary judge was not required to consider the appellant’s Initiating Application in full at the hearing, it being a discrete hearing on the issue of Rice and Asplund. It was only if the appellant could convince the primary judge of a significant change in circumstances that the Initiating Application would thereafter fall to be fully considered.
As to the allegations about the primary judge “rushing” the hearing, the respondent asserts that this is a regular feature of a busy court like the Federal Circuit Court, where there are considerable time constraints, given the often overwhelming number of matters needing to be determined in a day. It is submitted by the respondent that her Honour conducted the proceedings in the ordinary fashion and significantly, correctly says there was no complaint by either counsel at the hearing about the way it was conducted (Vakauta & Kelly). I accept the respondent’s submission in this respect.
Lastly, upon reading the transcript of the hearing on 12 November 2020, her Honour’s comment as to the “enormous amount of material filed” which her Honour correctly identified was unusual for interim hearings, cannot be seen as a lambasting of the appellant’s counsel nor that it amounted to appealable error.
Ground 7 is not established.
Ground 1: Confinement of the scope of enquiry
The appellant contended that the primary judge unreasonably, and without explanation, confined the scope of her enquiry at the interim hearing to only two issues; namely the respondent’s potential relocation, and that the new Initiating Application agitated for more time to be spent between the appellant and the child. The appellant submitted that the primary judge was well aware of the myriad of issues the appellant was contending constituted a change of circumstances, which required further determination by her Honour. These issues were aired before the primary judge at both mentions on 19 May and 4 August 2020, and were also deposed to in greater detail in the appellant’s affidavit filed 15 October 2020 in relation to the hearing. That affidavit listed 13 grounds which the appellant says constituted a significant change in circumstances, as follows:
(a)Decline in [the child’s] health and wellbeing;
(b)Exclusion from healthcare, education and extra-curricular activities;
(c)Unilateral suspensions of [the child’s] time with [the appellant];
(d)No provision for makeup time;
(e)[The child] has insufficient time with [the appellant];
(f)[The child] and [the appellant’s other child] have insufficient time together;
(g)[The child’s] view of [the appellant] is interfered with;
(h)[The appellant] has re-partnered;
(i)[The respondent’s] relocation to J Town;
(j)G primary school;
(k)Agreement at mediation not yet a Consent Order;
(l)Parenting decisions deferred to lawyers;
(m)[The child’s] living arrangements.
The appellant submitted that the primary judge did not have regard to these issues expressed in her affidavit, and instead “pre-determined the scope of the circumstances to be aerated prior to the hearing and ultimately limited the issues to which she sought submissions…to two issues” (Appellant’s Summary of Argument filed 18 January 2021, p.3). The appellant asserts that this amounted to a denial of procedural fairness on the part of the primary judge.
It is useful to recite the relevant extracts of the transcript where the issues in the hearing were raised between counsel for the appellant and her Honour, as follows:
MR ALEXANDER: Two-fold. Yes, but as she deposes to there has been significant difficulty with all of the time occurring as per the order which is one of the problems that she says exists with the orders and features as one of the changes in circumstance that has arisen since them.
HER HONOUR: Well, she says she simply is of the view that the child should spend more time with her. I mean, if she’s having that time what is it, the fact that the other parent doesn’t provide the time? Is that a complaint, Mr - - -
MR ALEXANDER: Well, that’s what she says in her affidavit, your Honour, about difficulties associated with the time.
…
HER HONOUR: Mr Alexander, the approach would be for your client to put on a contravention. So, I mean, how I read her documents is she’s very unhappy with Judge Vasta’s decision. Be that as it may those orders remain in place and she wants to spend more time with the children and she anticipates her former partner moving to J Town. Judge Vasta included orders about the child’s attendance at various day cares and kindergartens and the like…
…
HER HONOUR: Mr Alexander, is there any other specific issue of concern other than – look, I’m reading your client’s material as her wishing for more time. She hasn’t put on a contravention. Mr Baston says the orders are complied with. She needs to put on a contravention if she’s suggesting that the child is being withheld. As you know, Mr Alexander, Rice & Asplund can be applied to a discrete issue. Do you say that there’s any other pressing issue other than more time that your client seeks?
MR ALEXANDER: Your Honour, two things. The first is in relation to this J Town move, it’s not in the local area at all. This is something that Mr Baston’s client has been insistent upon throughout the currency of these proceedings and says, “It’s about 30 minutes, albeit on a highway,” driving at 100 kilometres per hour let’s assume on the highway. It is a change of location significant that has the tendency to make the time more onerous. That is one factor…
…
HER HONOUR: And then it would seem that the orders would remain, Mr Alexander, because – I mean, if your client is saying the child is being withheld she needs to put on a contravention. I can’t determine that matter. Mr Baston said that the respondent is compliant with the orders. There’s nothing specific I can see. It’s fairly vague about what’s going on with the child, but, look, the tone of your client’s affidavit is that she wants more time. It’s not satisfactory to her and she wants more time.
MR ALEXANDER: I do accept, your Honour, that that’s one feature of her affidavit and you haven’t heard submissions from me about that point for a good reason, but standing behind or – aside from that, with respect, your Honour, is my client says that the respondent frustrates the time. She says that in her affidavit material. Mr Baston says, “Well, my client disputes that. She says that she’s compliant with the time.” It can be, your Honour, a change of circumstance warranting the variation of an order or reopening of the proceedings that doesn’t necessarily require a contravention, because obviously if someone isn’t complicit with an order and the time is being frustrated then one avenue is obviously a contravention, prove that or not, and the court obviously has the powers to vary the order irrespective of whether one is successful with the contravention or not.
But another process that’s available to the parties is, in fact, this one. You don’t need to bring proceedings to have someone punished for a breach of the order. You can simply come to the court and tell the court that this has occurred, this is a significant change and that the court should, in the exercise of its discretion, vary the order. And contravention proceedings, in my respectful submission, can sometimes be a burden on the court and a distraction to the parties in, you know, really what is the main game which is trying to fix the problem that occurs and I think courts hear too often contravention applications when there’s a more practical way of dealing with it. My client has chosen to go along that line to say the respondent frustrates the time. She alters it unilaterally. She doesn’t then provide makeup time. She has the sole PR so she sees that she controls the show and can do whatever she likes and that’s one of my client’s frustrations. I haven’t devoted much time to submissions in relation to my client saying that there should be more time because that’s not really something I think that would persuade you particularly much of a change in - - -
HER HONOUR: No.
MR ALEXANDER: …change in circumstance, but it’s the other things that my client says about the child – the child has expressed a desire for more time, but again it’s not a strong - - -
…
MR ALEXANDER: You couldn’t. But the main difficulty, your Honour, that my client has and the reason why she has brought the proceedings is, firstly, in relation to these – I will use the word loosely, it’s my word – threats of “I’m relocating.” That’s a significant issue. The second – which makes the time more onerous. The second issue is in relation to the fact that the respondent does what she likes when she likes, according to my client, in terms of the time and whether it is to occur pursuant to the orders or not.
…
HER HONOUR: It seems to me that in the event that the respondent wishes to relocate to J Town then an application be filed prior to that relocation. Mr Baston, I accept Mr Dooley’s submission that that seems to be a matter that is significant and sufficiently significant enough to reopen the matter. Given the acknowledgement – well, given the concerns raised by the applicant to this application that J Town – a move to J Town would be problematic, there’s a proper basis for the applicant receiving proper notice prior to the move. If the respondent intends to relocate to J Town then she needs to put on an application prior to the move. Otherwise, Mr Alexander, I’m not satisfied that the material before me warrants consideration of any other matter. The respondent is required to comply with the time-with orders.
…
HER HONOUR: And it would seem to me that the application to reopen would be dismissed, but, Mr Alexander, I would be prepared to make an order two-fold: that, one, in the event that the child is not provided to spend time with the applicant in this interim application the respondent is to provide the applicant with a medical certificate and, secondly, in the event that the respondent intends to relocate to J Town prior to any relocation she’s to file an application and it is my view - - -
MR ALEXANDER: Thank you for that.
HER HONOUR: It is my view that that application will properly be dealt with and I can tell you now the application to relocate will be accepted and parties won’t be required to address the Rice & Asplund issue. It has been foreshadowed. It’s an application that perhaps the respondent may now action. I’m not sure. Your client, Mr Alexander, is extremely worried and distressed about it. She raised a concern that it will interfere with the schooling. There may be a consequential application by the respondent to change the child’s schooling if she files an application to relocate to J Town. This is speculative at the moment. She hasn’t done so and I can’t see there’s a proper basis to reopen the matter. And I urge counsel to draw to the attention – to these parents the fact sheet on the Family Court website about immersing their 4 year old in conflict which is ongoing for a period of four years now.
(Transcript 12 November 2020, p.2 line 32 to p.11 line 3)
That exchange shows that it was counsel for the appellant’s submission before the primary judge that the main issues in the proceedings pertained to whether the respondent intended to relocate with the child, and whether the respondent was making unilateral decisions in relation to the time spent between the appellant and the child (Transcript 12 November 2020, p.5 lines 38–44). A party is bound by the conduct of their case before the primary judge (Metwally v University of Wollongong (1985) 60 ALR 68). Further, the respondent submits that the primary judge had before her the appellant’s affidavit of 15 October 2020, and together with counsel for the appellant’s submissions at the hearing, her Honour determined that she was “not satisfied the material before [her] warrants consideration of any other matter” (Respondent’s Summary of Argument filed 5 February 2021, paragraph 23). As to the allegation that the primary judge denied the appellant procedural fairness in not conducting a proper enquiry into her application and affidavit, the respondent submits that her Honour was under no obligation to do so as the hearing was on a discrete issue of the Rice and Asplund threshold. I agree.
Ground 1 fails.
Ground 5: Inadequate reasons
This ground contends that the primary judge failed to give adequate reasons for her decision. Particularly, the appellant says that, aside from the primary judge making the statement that litigation is not in a child’s best interests, her Honour does not indicate what evidence or otherwise she relied on to make her findings, reach her conclusions, nor does she explain why all the circumstances did not justify a further hearing on the parenting issues. Further under this ground, despite not being related to a reasons challenge, the appellant submitted that the primary judge placed weight on irrelevant matters, namely that the appellant did not have parental responsibility pursuant to the final orders, and that it was she who brought the previous appeal against the final parenting orders (when in fact it was the respondent who brought the previous appeal).
The principles related to challenging the adequacy of reasons is well-known. In Bennett, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)The appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) Justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA with the concurrence of the other members of the bench said:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge "'enter into' the issues canvassed and explain why one case is preferred over another".
(References omitted)
It is not necessary for a judge who is undertaking a discretionary judgment to detail each fact which they have found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference of a finding is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Rafferty & Spencer (2016) FLC 93-710 at [30]).
The respondent submitted that the main issues for determination were clearly raised before the primary judge by the appellant’s counsel at the hearing, namely the respondent’s proposed relocation and the respondent’s frustration of the ordered time. It was submitted that after raising those issues at the hearing, her Honour then clearly traversed the two matters and came to the conclusion that she was not satisfied of a significant change in circumstances such as to warrant the re-litigation of the matter. I accept that is indeed the case.
Ground 5 is not established.
Grounds 8 & 9: Acted on wrong principles
Ground 8 alleges that the primary judge erred in law by stating in exchange with the appellant’s counsel, that a contravention application must be filed if orders have been frustrated or not complied with, rather than an Initiating Application, and further advising the appellant that her Honour could not hear a contravention application.
The relevant parts of the transcript have been included at [47] above in these reasons.
The appellant submitted that her Honour was incorrect in saying such things, given what is contained on the Federal Circuit Court of Australia’s website about contravention applications. Moreover, as the transcript reveals, the appellant’s counsel specifically submitted that non-compliance with orders need not necessarily be addressed by the bringing of a contravention application, but rather can be sought to be addressed in fresh proceedings.
However, as the exchange between the primary judge and the appellant’s counsel clearly demonstrates, although the primary judge was obliged to take the appellant’s case at its highest, the respondent’s alleged non-compliance with orders was nonetheless denied by her. Therefore the non-compliance was not established by findings made in a contravention application, and hence the new proceedings would require the primary judge to determine whether or not the asserted non-compliance with orders occurred.
Against that background, the existence of an as-of-right alternative to fresh substantive parenting proceedings, in this case by way of a contravention application, is a relevant consideration to the exercise of the discretion invoked in a Rice and Asplund determination. The fact that the appellant had eschewed recourse to that alternative process is also relevant.
Whilst absent written reasons, or formally settled ex tempore reasons, the primary judge’s articulation is likely unpolished, nonetheless it seems tolerably clear that the appellant’s failure to bring contravention proceedings was a significant factor in her Honour’s decision. No error is established in that regard.
Moreover, in order to successfully assail the finding that there was insufficient change in circumstances to warrant further substantive litigation, the appellant must show that that finding was not reasonably open to her Honour. Particularly given that the relocation issue largely evaporated, to seek to re-litigate solely by reference to non-compliance with prior orders, which non-compliance can be otherwise remedied, means that the finding of insufficient change in circumstances was well open to the primary judge.
Finally, an appeal from the exercise of the discretion created by Rice and Asplund is governed by the principles established in House v The King. No relevant error or the kind therein discussed is established here. Ground 8 fails.
Turning to Ground 9, it contends that the primary judge erred at law when applying the principles of Rice and Asplund and associated authorities. The appellant cited various Full Court authorities as to the principles to be applied in a Rice and Asplund determination, particularly that the rule is a manifestation of the best interests principle. In essence, the appellant submitted that the primary judge did not have regard to the whole of the evidence, particularly the appellant’s affidavit filed 15 October 2020 and the issues which were listed in that affidavit said to demonstrate a significant change in circumstances. Further, it was submitted that the primary judge was obliged to take the appellant’s evidence at its highest, being a discrete preliminary hearing (Walter & Walter [2016] FamCAFC 56 at [51]).
However this ground again ignores the way in which the appellant, by her counsel, conducted her case before the primary judge. It was conceded by him that only the two matters relied upon by her informed the question of whether a sufficient change in circumstance had been established, such as to warrant further litigation in relation to the child. Further, there is no warrant for the claim that the primary judge failed to take the appellant’s evidence at its highest.
Ground 9 fails.
CONCLUSION
The challenges to Orders 1 and 2, based upon the lack of occasion having arisen for them being made, and the impermissible pre-determination that relocation by the respondent would justify re-litigation, succeed, but no challenge to Order 3 has succeeded.
Orders 1 and 2 must therefore be set aside, but as they necessarily did not properly arise for consideration by the primary judge, there is no prospect of this Court re-exercising any discretion, nor any opportunity for those matters to be remitted.
I do not overlook that, on one view, the appellant’s success in challenging Orders 1 and 2 is contrary to her interests, however that cannot stand in the way of their success.
COSTS
In the event that the appeal succeeded, each party, including the ICL, sought a costs certificate in relation to any re-hearing. The respondent and the ICL also sought a costs certificate in respect of the appeal itself. No re-hearing will be ordered, notwithstanding the partial success of the appeal, and therefore no certificate to either party for any re-hearing arises for consideration, however I will order that the respondent and ICL have costs certificates in the appeal.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 28 April 2021
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