Marsden & Winch
[2009] FamCAFC 152
•26 August 2009
FAMILY COURT OF AUSTRALIA
| MARSDEN & WINCH | [2009] FamCAFC 152 |
| FAMILY LAW - APPEAL – appeal against trial judge’s decision to dismiss the father’s application to re-agitate parenting proceedings – whether the decision of the trial judge not to let the father re-litigate the case was contrary to the best interests of the child – whether his Honour erred in dismissing the father’s application because he misapplied the “threshold” test arising from Rice & Asplund (1979) FLC 90-725 – consideration of the so-called “rule” in Rice & Asplund – appeal allowed – orders set aside – matter remitted for re-hearing. FAMILY LAW - APPEAL – COURTS AND JUDGES – appeal against trial Judge’s decision not to disqualify himself – no merit found – this ground of appeal failed. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 ss 6, 8 and 9 |
| Antoun v R (2006) 224 ALR 51 |
| APPELLANT: | Mr Marsden |
| RESPONDENT: | Ms Winch |
| FILE NUMBER: | CAF | 65 | of | 2004 |
| APPEAL NUMBER: | EA | 104 | of | 2008 |
| DATE DELIVERED: | 26 August 2009 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn & Cronin JJ |
| HEARING DATE: | 8 April 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 August 2008 |
| LOWER COURT MNC: | [2008] FamCA 1029 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Litigant in person |
| SOLICITOR FOR THE APPELLANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
Orders
That the appeal against the orders of the Honourable Deputy Chief Justice Faulks made on 28 August 2008 be allowed.
That Orders 2, 4 and 7 of the orders (being the orders dismissing the application of the father for time with the child, ordering costs against the father and removing the matter from the pending cases inventory) be set aside.
That the father’s application about child matters filed on 28 July 2008 be remitted to a single judge of the Family Court of Australia other than the Honourable Deputy Chief Justice Faulks for further hearing.
That prior to the re-listing of the father’s application, the father file and serve on the mother all material upon which he wishes to rely at the hearing, including any reports of experts that he wishes to put before the Court.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (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 appellant father in respect of the costs incurred by the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 mother in respect of the costs incurred by the respondent mother in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new hearing granted by these orders.
IT IS NOTED that publication of this judgment under the pseudonym Marsden & Winch is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 104 of 2008
File Number: CAF 65 of 2004
| Mr Marsden |
Appellant
And
| Ms Winch |
Respondent
REASONS FOR JUDGMENT
Introduction
This appeal concerns the dismissal of proceedings brought by Mr Marsden (“the father”) applying to re-agitate proceedings with Ms Winch (“the mother”) over parenting orders in relation to their one child, S, and the trial judge’s decision not to disqualify himself and allow another judge to determine the father’s application.
On 4 August 2006 in the original proceeding (“the main proceeding”) Faulks DCJ heard parenting and property proceedings between the father and mother and made orders relating to S which provided that she live with the mother and have no direct contact with the father. He also made orders in relation to the division of their property. On 1 September 2006 the father appealed against both sets of orders. On 21 November 2007 the Full Court (Warnick, Thackray and Le Poer Trench JJ) dismissed the father’s appeals.
The father’s application to the High Court for special leave to appeal was refused on 15 May 2008.
On 28 July 2008 the father filed a new application in the Family Court of Australia seeking orders which provided for face-to-face contact with S, first under supervision and, after a suitable period, on an unsupervised basis on alternate weekends, for half of the school holidays and on special days. He also sought some further orders in relation to property proceedings, essentially to compensate him for the diminution in the value of assets divided on a percentage basis at trial and which he was to receive. These parenting and property applications were dismissed by Faulks DCJ on 8 August 2008. The dismissal of the parenting application is now the subject of the father's appeal. As he does not appeal against the dismissal of his property application, we do not need to deal with it further.
Issues and conclusions
The issues raised on this appeal, and our disposal of them, are as follows.
First, the father asserts that the trial judge’s decision not to permit him to relitigate the parenting proceedings is contrary to the best interests of the child. Because the question of best interests falls to be determined within the rubric of other grounds argued, we do not intend to deal with this matter as a separate ground of appeal, but rather as an integral part of each of the following grounds.
Second, the father challenged the trial judge’s decision not to disqualify himself and allow another judge to determine his application, either as a threshold matter or as a full hearing. This challenge fails.
Third, the father challenged the manner in which the trial judge had applied the “threshold test” (the so-called rule in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”)) and challenged the finding that the father’s circumstances were not sufficient to justify a hearing of his application filed 28 July 2008. This challenge succeeds in combination with other grounds.
Fourth, the father challenges the finding that some of the new evidence in the father’s application was or could have been before the trial judge at the first trial and that there was no new evidence. In relation to most of the evidence sought to be introduced by the father, this ground fails. But to the limited extent he sought to introduce further evidence, in combination with other grounds, this ground in part succeeds.
Fifth, the father challenges various findings by the trial judge. Because of the manner in which we have concluded his Honour dealt with the part of his application, these challenges succeed.
Sixth, the father challenges the dismissal of his application on the basis that he has been denied procedural fairness and natural justice. Because of the manner in which his Honour applied the so-called rule in Rice & Asplund, this challenge succeeds.
Seventh, the father challenges the trial judge’s order that he pay the respondent’s costs. Because the appeal has succeeded, this ground must also succeed.
The result of the findings on the issues above is that the father succeeds in his appeal because of the lack of procedural fairness and the mis-application of the so-called rule in Rice & Asplund.
Background
The reasons why the father was denied any face-to-face contact with S by the original decision of Faulks DCJ are integral to this appeal. It is convenient to repeat the background as set out by the Full Court in the previous appeal (Marsden & Winch (No 3) [2007] FamCA 1364).
9.At the time of trial, the wife was a [public servant] aged 44 years and the husband was a 51 year old pensioner. The wife is an Australian citizen and the husband holds dual Australian and [foreign] citizenship.
10.The parties met in Australia and were married in 1984. They then lived in the [foreign country] for 10 years before taking up residence in Australia. There was only one child of the marriage, [S], who was born in March 2002. [S] was four years of age at the time of trial.
11.The husband sustained a knee injury in 1985 and has subsequently required surgery on numerous occasions. He was injured again in an accident in 1992. These injuries did not prevent the husband from pursuing his passion for [a physical sport], a sport in which he has had considerable success, both in Australia and overseas.
12.Upon their return to Australia in 1994, the parties settled initially in [New South Wales]. After a period travelling around Australia, they ended up in [another State] between 1997 and 2002. Whilst living in [the other State] the husband was convicted on three occasions of indecent exposure (twice in 2000 and once in 2002). There was no evidence he had ever previously been convicted of such offences, although he had been the subject of complaints to police since the 1980s.
13.The husband acknowledges he had developed a compulsive propensity to masturbate during his late adolescence and had satisfied this urge throughout most of his adult life. He also acknowledges that, from time to time, he has derived sexual gratification by exposing himself in public. He claims that the objects of his behaviour were always athletic looking women and that it was only ever by accident that he was observed by younger girls. He claims his behaviour was at its worst when living in [the other State] and that he ceased to engage in such activity soon after [S] was born.
14.In 2001, the husband travelled to [the foreign country] for the [sport] season. During his time there, the husband stayed with his sister, who was hosting a visit by a friend and her 14 year old daughter, [C]. The husband became “fond” of [C] and developed a relationship with her which he accepted at trial was “inappropriate”. Later in his visit to [the foreign country], the husband went to stay with [C] and her mother in their own home. The visit was abruptly terminated when [C’s] mother experienced what the husband claims was a psychotic episode, during which she called the police and accused the husband of molesting [C].
15.The husband returned to [the foreign country] for [a major sporting event] in February 2002, notwithstanding that the wife was shortly due to give birth. During his two week visit, the husband spent a few nights staying in the home in which [C] was then living. Upon his return to Australia, he remained in contact with [C]; carried her photograph in his wallet; and kept a pair of her underpants “stashed…away in a secret spot”, together with a card and jewellery, which he had proposed to send to her – until they were discovered by the wife.
16.The parties separated in June 2003, when the wife and [S] moved from [the country town] (where the parties were then residing) to Canberra. The husband followed, initially taking up residence in a motel. Within a few weeks, the husband again left Australia, this time to follow [a sporting event]. He stayed away for five months, returning to Australia in November 2003, but not resuming residence in Canberra until the middle of December 2003.
17.The wife commenced proceedings in December 2003, seeking an order that any contact between the husband and [S] be supervised. In January 2004, the husband was granted supervised contact at Marymead. These visits did not commence until March 2004. After only four visits the husband returned to [the foreign country] in May 2004.
18.The contact orders were suspended on 3 May 2004, just before the husband’s departure from Australia. An order was made at the same time permitting the husband to send gifts and correspondence to [S] whilst he was overseas. A few days later, an order was also made allowing the husband telephone contact with [S].
19.The husband did not return to Australia until the middle of January 2005. Upon his return, he did not have the benefit of any orders permitting contact or communication with [S]. The order for supervised contact had been suspended and the other orders allowing communication applied only for the period he was overseas. The parties did, however, reach agreement for the telephone contact to continue.
20.The proceedings were reactivated and an order was made for [Dr W, a psychiatrist] to be appointed as Single Expert to carry out an evaluation of the family. [Dr W’s] report was published in May 2005. He recommended the recommencement of the supervised contact visits.
21.On 14 September 2005, interim orders were made for the husband to have contact with [S] for two hours a fortnight at Marymead. The centre was unable to facilitate the visits until November 2005. By this time, some 18 months had passed since the husband had completed the last of the four visits he had enjoyed with [S] prior to his departure for [Europe] shortly after the separation.
22.The wife had obtained a restraining order after the husband’s return to Australia in December 2003. The husband was convicted of a number of breaches of the order, which was extended for a further year in 2005. The husband spent six weeks in custody from June to August 2005, after being charged with a further breach. He was found guilty and sentenced to the time he had already spent in custody.
23.After his return to Australia in 2004, the husband purchased a campervan in which he has since lived in and around Canberra. On a hot day in January 2006, a friend of the wife saw the husband sitting in his campervan, backed up against the wire fence surrounding the [swimming pool]. She observed that the door of the vehicle was ajar and she also observed behaviour which led her to conclude that the husband was masturbating in public. She reported her suspicions to the police but no action was taken.
24.The husband continued to enjoy supervised contact visits with [S] until the trial commenced in April 2006. After five days of hearing, the proceedings were adjourned until late May 2006. After a further five days of hearing the matter was again postponed until July 2006, when the trial was finally completed after a further three days of hearing.
It should be recorded that the events described in paragraph 23 of the Full Court judgment, referred to as the “[swimming pool] incident”, were not uncontroversial and whilst in the first appeal Le Poer Trench J agreed with Warnick and Thackray JJ that the appeal should be dismissed, he departed from them in relation to the father’s challenge that his Honour’s findings about the swimming pool incident were not open to the Court. Le Poer Trench J concluded that there was merit in that ground that the finding that the father was masturbating at the swimming pool was not open to the trial judge on the evidence before him.
Again because of the integral nature of the findings to this appeal, we again quote from the judgment of the previous Full Court in relation to the trial judge’s reasons for the parenting orders.
26.Faulks DCJ commenced his judgment by dealing with matters he described as “controversial or significant”. One matter to which he paid particular attention was the long list of incidents raised by the wife concerning the husband’s voyeurism. His Honour noted the husband’s responses, which usually contained an admission that there had been an incident, but carried with it an innocent explanation. His Honour found the husband’s explanations to be “self-absolving”, “unconvincing” and “evasive”.
27.His Honour noted that the husband had conceded he had a history of “paraphilia”. (As the term is not in common usage, we should record that “paraphilia” encompasses a variety of sexual behaviours that are considered deviant or abnormal.) His Honour observed that the incidents described by the wife appeared to be “consistent with the condition of paraphilia” and that “the husband’s denial of the nature of his involvement in the incidents is to that extent less believable and again to that extent reinforces the existence and duration of the conditions”.
28.His Honour made clear he did not find that the husband had ever physically interfered with any person and, in particular, there was no suggestion that the husband had engaged in deviant activity either in the presence of, or directed towards, [S].
29.His Honour referred to the husband’s claim that his “interest is in athletic young women rather than adolescent or young girls”, but said he did not consider this was entirely accurate. In particular, his Honour referred to the husband’s involvement with the young girl, [C]. His Honour rejected the husband’s assertion that this relationship was of a “mentoring or paternal nature”. He observed that during the course of the trial “the husband to some extent claimed to have finally comprehended the inappropriate nature of his relationship and adjusted his stance somewhat about it”. His Honour noted that this included the husband’s acknowledgment that he had stolen a pair of [C’s] underpants and had “used them for some form of sexual stimulation”.
30.Although his Honour did not accept that the husband’s interest was only in “young women”, he found that the husband “does not have a particular interest in adolescent or young girls” (underlining in the original).
31.His Honour then recorded details relating to the restraining orders obtained by the wife and the breaches of those orders. He found that “while the father is not physically violent, he has an obsessive relationship with the mother” and observed that even during the trial it was apparent that the husband “had difficulty in accepting that his relationship with the mother was over”. He referred to correspondence sent by the husband to the wife and [S] which he described as “long and rambling and age-inappropriate letters [which] reflected on his part a determination to pursue a relationship with the mother which by any reasonable standards had long ago ceased to have any prospect of continuing”.
32.His Honour found that whilst the husband’s actions towards the wife might not pose any physical danger to her, they constituted oppressive conduct which was distressing to the wife and which he considered was likely to continue if the opportunity existed.
33.His Honour next set out his view of the relevant provisions of the Family Law Act 1975 (“the Act”) and the legal principles relevant to the issues concerning [S]. We will consider this part of his judgment in detail when discussing the first of the husband’s grounds of appeal.
34.His Honour then returned to consider the husband’s history of “public indecent exposure and public masturbation”. His Honour noted that whilst the husband conceded he had engaged in such activity in the past, he had drawn attention to the fact that he had no convictions in recent times and had submitted there was no reliable evidence that the behaviour was continuing.
35.His Honour observed that the expert evidence did not support the proposition that the husband’s deviant tendencies would necessarily lead to any form of direct sexual activity with any other person. His Honour concluded that the evidence did not support a finding that there was “an unacceptable risk” that the husband would sexually interfere with [S]. However, as his Honour said, this was not the end of the matter.
36.Firstly, his Honour noted that if the husband were to persist with his “anti-social and probably criminal behaviour” he ran the risk of police intervention. He continued :
48.…If such intervention occurred while [S] was with him this would at the very minimum be acutely embarrassing for her. It may because of the poor relationship between the father and the mother, leave her at least temporarily in a situation where she is not properly cared for if the mother were in such circumstances unable to be contacted.
37.His Honour next expressed his concern that it was “feasible/possible that the father could engage in such activities with, or in the presence of friends that [S] may have to stay when she is with her father”. In this regard, he noted that the husband had, “on occasions shown little discrimination about where he conducts his activities”.
38.His Honour moved on to consider the likelihood of the husband continuing to engage in his deviant behaviour. He said:
49.…If there were evidence that the father is having treatment and if there were evidence from an expert about paraphilia about the effect of such treatment and the likely prognosis, I could feel a little more comfortable about the future.
39.His Honour then noted that the Single Expert, [Dr W], had recommended the husband be seen by an expert in paraphilia. He recorded that the husband had not taken up the recommendation and noted there was accordingly no evidence from an expert in paraphilia about the likelihood of the husband’s condition resolving. He noted that whilst [Dr W] had disclaimed particular expertise in the diagnosis or treatment of paraphilia he had stressed there would be no “cure” unless the husband was receiving treatment.
40.His Honour then went on to note that if –
… the father’s paraphilia manifested itself either in the presence of [S] or her friends this would be acutely embarrassing for [S] and may bring about criminal charges against the father and may, in any event, severely affect his relationship with her.
41.His Honour accepted the proposition that he could not “simply conclude from past events that a specific activity will continue”. He said his acceptance of this proposition therefore required “a careful consideration of the [swimming pool] incident”. Before commencing his discussion of that incident, his Honour saw fit to repeat his finding that the husband’s denials concerning his involvement in deviant activity were “unconvincing”. We will later set out in full his Honour’s treatment of the [swimming pool] incident. It is sufficient to record here that he concluded that the husband had indeed been masturbating outside the [swimming pool], just a few months before the trial commenced.
42.His Honour then concluded:
56.Given the numbers of times in the past when such activities have occurred it is not fanciful or unreasonable to be concerned that the activities might occur in the future. This is particularly so when the father appears to remain convinced that he does not require treatment.
43.His Honour went on to say that his concerns about the husband engaging in paraphilic activity in the future were reinforced by the fact that he had not been fully frank about his behaviour when seeking out professional assistance in the past. He found the husband’s tendency not to tell “the full story” to be “particularly worrying” in the context of assessing his assurance that the behaviour was not continuing.
44.His Honour then returned to consideration of the husband’s relationship with [C]. He said he was “seriously concerned” about this, even if he could be persuaded that the husband’s past paraphilic conduct ought not preclude him from spending time with [S]. He observed that whilst the relationship with [C] had occurred between 2001 and 2002, the husband had persisted up until trial with the view that there was nothing wrong it. As his Honour said, “there was something wrong with that relationship. She was at the relevant time 14 years old. He was 47 or 48 years old”.
45.Whilst his Honour said he was reasonably satisfied there was no physical aspect to the husband’s relationship with [C], there was “quite clearly a sexualised aspect to it to the extent that he stole her under-clothes and kept them”. He also found that the letter and gift, which the husband proposed to send to [C], were “totally inappropriate”. He concluded that the relationship “was of a romantic nature, was of a partly sexualised nature and was totally inappropriate” and was inconsistent with the husband’s assertion that he was interested only in “young athletic women not in young girls”.
46.His Honour then made a variety of observations, which are so central to his ultimate decision that they must be repeated in full:
61.These factors suggest that there are aspects of the father’s condition even after all the therapy he has undergone which he himself has not yet come to grips with. Moreover his inability apparently to be open with his therapists gives concern either about his own insight or alternatively his honesty in this area. In either direction his interest and concern in girls of this age even though perhaps at this point only apparently manifested through one girl of this age is of great concern.
62.This would not in itself of course leave me to conclude that he must necessarily be of danger to his own daughter. However it would leave me with a very serious concern that he may either directly or indirectly show interest in friends of his daughter at a later point and the consequences of his doing so at their most extreme do not need to be further canvassed. I cannot and do not find that there is a probability or even an unacceptable risk that the father would interfere with any of [S’s] friends – let alone [S]. I do accept however that it is possible and for the reasons I have just mentioned in my opinion more likely than not that without treatment the father may engage in exhibitionism with young friends of [S]. The test is not “unacceptable risk”. However all relationships depend to some extent on balancing the predictable benefits against the possible or likely detriments. The balance itself must in part depend on the magnitude of the advantage and the potential consequences if the possible detriment should occur. There are advantages for [S] in having a relationship with a loving and caring father but I do not find that those advantages outweigh the detriment to her if the father should revert [to] or possibly continue with his past behaviour.
47.His Honour then observed that none of the matters to which he had referred would preclude [S] spending time with the husband “supervised by a vigilant and appropriate supervisor”. His Honour recorded that contact had been supervised up to that point and that from the husband’s point of view “this has been a satisfactory (but severely limited) experience”. His Honour continued:
64.The mother reports some disturbed behaviour from [S] in and about “contact” but it would appear that at the very least the visits have been neutral. The circumstances as the father complains are inevitably artificial. The father is limited in the scope of his activities with [S]. There is no opportunity for [S] to have normal living time with her father. There has been some controversy about the payment for the service. The father’s lack of employment has not assisted.
65.Notwithstanding all of those drawbacks if I am to place as a very high priority the maintaining of some form of relationship between [S] and her father it would have to be said that supervised contact may present an opportunity for doing this.
48.His Honour then recorded, with regret, that there were factors which would militate against even supervised contact. He went on to describe those factors.
49.The first was the husband’s intention to return to [the foreign country] to continue with his [business activities]. His Honour was unable to determine how long he might be away, but found “that months are likely to be involved rather than shorter periods”. He found that the husband had “clearly given no thought to the fact that this activity would necessarily separate him from [S] …” He also found that the husband had not indicated “whether he wanted to return to see [S] in Australia during this development phase or perhaps even more importantly whether he would be able to either financially or physically”.
50.The next factor his Honour took into account was the husband’s plans to have further medical treatment in [the foreign country]. He noted that the husband had not “given any indication about what he saw would happen with [S] while he was undergoing this treatment in [the foreign country] …” He went on to note that the husband’s [business activities] and medical treatment could not occur simultaneously and would therefore “represent separate periods in which the time that [S] could spend with her father physically even in a supervised way would be extremely limited if not suspended”.
51.His Honour did note that many parents are separated from their children (for example whilst on military service) and observed that “this does not mean that the children cannot continue to have a relationship with an absent parent”. In the present case, however, he observed that the husband was choosing to undertake the activities which would take him away from Australia and that “at the very least they demonstrate … a lack of understanding about how the things that he wants to do may impinge upon things that may be best for his daughter”. His Honour concluded:
73.Importantly in the context of a consideration of supervised contact the restricted relationship between [S] and her father would be impacted by such absences. This at least calls into question the efficacy of such supervised arrangements if even that limited physical interaction will be suspended or circumscribed by the activities of the father.
52.The next factor his Honour considered relevant to supervised contact was what he described as the husband’s “almost obsessional relationship with the mother” which he found had “led to conduct which might in some respects be thought to be close to stalking”. He went on to describe how the husband had used [S] in a “totally inappropriate” way in trying to assist him to resume a relationship with the wife. His Honour concluded that the husband “has no ability to understand that he is in fact using his own daughter in furtherance of what he sees as a legitimate objective of reconstituting his relationship with the mother”.
53.His Honour then turned to the impact that contact between the husband and [S] would have on the wife. He said:
77.The father complained (with some justification) that the mother had shown some degree of obsession herself in her physical examinations of [S’s] genitals and body when she returned from time with her father. This was an excessive response but illustrates the effect contact has had on the mother and could have. That in turn may have vicariously unfortunate effects on [S]. It would not be reasonable to abandon time that a child spends with one parent because the other parent responds to that time unreasonably or irrationally. However when the other parent’s conduct has been responsible for the concerns of the parent (even if those concerns may not be a proportionate response) it is reasonable to at least take that consequence into account.
54.In considering the possibility of ordering supervised contact, his Honour also took account of the way in which the husband had misused the order allowing him written contact with [S]. He noted that “part of the evidence before me is a quite extraordinary letter written by the father in a rambling scientific and pseudoscientific analysis of the world, philosophy and other factors well beyond the remotest comprehension of a child of [S’s] age”. His Honour concluded that “the correspondence such as is in evidence before me suggests that this is but another attempt on the part of the father to communicate with the mother purportedly through communicating with the daughter”.
55.His Honour then said:
81.This leads me back to the question of supervised contact. Communications with a child about her father visiting her are not things which would ordinarily excite the concern of those who are supervising. That in this context makes the supervised contact even more problematic.
56.The second sentence of this paragraph is somewhat cryptic but, in context, it is clear his Honour was concerned that the husband might speak with [S] during supervised visits in a way that might appear innocuous to the supervisor but would, in fact, have a deleterious impact on the wife, who would be likely to hear from [S] what was said during the visits.
57.His Honour concluded his discussion concerning the possibility of ordering supervised contact by saying:
82.On balance it seems to me that the supervised contact does not provide any benefit for [S]. This is a conclusion I reach with a great deal of reluctance and with significant sadness. I do not believe however that it is appropriate that in all of the circumstances of this matter [S] have even a limited and potentially difficult sort of relationship with her father.
58.His Honour then turned to consider means by which the husband might continue a relationship with [S] but without having face to face contact. He indicated that he had “deliberated hard” about whether he should prohibit any written contact because of the husband’s past misuse of such contact. He concluded that he should “place a measure of trust” in the wife because of the way she had co-operated in trying to maintain a relationship between [S] and the husband, notwithstanding “extreme provocation”. He therefore determined that the husband could write to [S], but only on the basis that the wife could decide whether the correspondence was passed on. He also determined that the husband should be permitted to send Christmas and birthday cards and gifts.
The Application to adduce Further evidence
Before turning to the first ground of appeal it is necessary to deal with the application filed by the father to adduce further evidence in the appeal. This evidence consisted of excerpts from the transcript of proceedings, excerpts from the reasons for judgment and the single expert and affidavit material before Faulks DCJ at the first hearing. The principles in relation to the introduction of fresh evidence in a parenting matter are well-known and set out by the High Court in CDJ v VAJ (1998) FLC 92-828:
104.In the exercise of the discretion conferred by a power such as s 93A(2) the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.
…
107.The discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way. In particular, the sub-section contains no requirement, comparable with that often found in statutes conferring power on an appellate court to receive further evidence, that “special grounds” or “special leave” be shown before the evidence can be adduced...
108.…That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered, a point recognised by the Full Court in In the Marriage of Abdo. Although the discretion to admit further evidence is not attended by any express words of limitation, the subject-matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellant procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.…The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
113.In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
In this case the material sought to be introduced comprises sections of the evidence from the first case. To the extent that the matters are relevant, then they were encapsulated in the reasons for judgment in the main proceeding (in respect of which the appeal was unsuccessful) and cannot advance the father’s case. To the extent that that evidence was not encapsulated in the first judgment, then it did not form part of the trial judge’s reasons for his decision and cannot now be relied upon. Thus the father’s application to adduce further evidence must be dismissed.
There are two matters in addition not included in the appeal books. The first is a bundle of what is called “contentious documents” which it appears the respondent mother sought be included in the appeal book. The bundle consists of a number of emails between the father and the mother’s solicitors and detailed objections to the quantum of costs, which matter was the subject of dispute. Some emails go to the quantum of costs, which is apparently being reviewed, rather than to the judicial decision, and we conclude that these documents were appropriately omitted from the appeal book and should not now be included.
The only documents sought to be added to the appeal book which in our view have any merit are the reports of Dr W, the psychiatrist/expert witness who provided a report for the main proceeding dated 16 May 2005; and in addition there was a further letter from Dr W dated 1 September 2005. This is not new material as it was before the trial judge in the main proceeding and he would have been well aware of the entirety of Dr W’s report when he considered the application the subject of this appeal. For completeness, however, we consider that the appeal books should include the report of Dr W dated 16 May 2005 and the subsequent letter of 1 September 2005.
Disqualification ground
In his reasons for judgment (at paragraphs 5, 6 and 7) Faulks DCJ dealt with the application by the father for his disqualification and his reasons for refusing that application. His Honour indicated that the fact that the father acknowledged that he had in the past been offensive and unpleasant to Faulks DCJ or to the Court was not a matter that he regarded as either causing him to feel that he could not do justice or to disqualify himself from the proceedings. He also added that insofar as it might be thought that his Honour constituting as it were the second court might be reluctant to disturb the findings originally made by him, indicated that was not a matter that troubled him and that he would have no difficulty with the proposition that any determination he had previously made should be changed if the circumstances so merited it.
The well-established test in relation to disqualification is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; see also Johnson v Johnson (2000) 201 CLR 488; Antoun v R (2006) 224 ALR 51; Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 229 CLR 577). In Ebner it was said that the application of “the apprehension of bias principle” requires two steps:-
[8] First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
The father’s submissions about what might lead a judge to decide a case other than on its legal and factual merits, the first part of the test, were articulated in his written submissions and in summary were that:
· his Honour has been inappropriately critical, condescending and insulting of me during proceedings;
· I subsequently also engaged in some critical remarks of him as well;
· his Honour corroborates in his reasons for judgment that I had been critical and made remarks he took offence to;
and he submitted that under these circumstances it would have been appropriate to have another judge determine the application. In his oral argument the father said that the trial judge made findings that were in error in earlier proceedings. In particular, his finding that the father was self-absorbed was erroneously made and his Honour still holds those views today and therefore should not hear the matter.
The transcript shows that there was some dialogue between his Honour and the father, who was unrepresented during the proceedings, and it was at his Honour’s invitation to the father to make an oral application for him to disqualify himself that the application was made. His Honour’s invitation arose on the following exchange (commencing at page 7 of the transcript of proceedings on 27 August 2008):
[MR MARSDEN]: I'm here before you today apparently to cross a threshold and, then, presumably, to go to a full hearing at some point. I have to ask some questions. Who is going to determine the threshold? Are you - - -
HIS HONOUR: I've got to. It's before me.
[MR MARSDEN]: - - - at all prejudiced against me considering our history? Is there any prejudice at all or can you objectively deal with me?
Having then indicated to the father that he would accept an oral application for him to disqualify himself, the trial judge went on to say:
HIS HONOUR: Well, I understand your serious concern but you'll have to articulate it more than that. At the moment, what you're saying to me is you don't like the decision I made on the last occasion. Well, I understand that. That's the way it is. I made the decision as well as I may. The decision has been upheld. Now, if you say, "I don't like it", that's not a ground for me to disqualify myself.
(Transcript 27/8/08 p 8)After some further dialogue his Honour said:
Now, you were asking me whether I am prepared to disqualify myself as a matter of my decision rather than yours. The answer is no, I'm not. In the interests of justice, I am the only Judge who regularly sits at first instance in Canberra. For me to disqualify myself would unreasonably delay the finalisation of this matter. Now, if you believe you have cause to show that I am - that I should disqualify myself, you put those matters before me, I will then give a decision on that and we will work from that point.
(Transcript 27/8/08 pp 8-9)The father then articulated his grounds for disqualification:
[MR MARSDEN]: Well, my cause is I strongly - I have been somewhat critical of you and that - let's be honest, that can prejudice people.
HIS HONOUR: Mr [Marsden], I - - -
[MR MARSDEN]: It's a professional criticism. It's not personal.
(Transcript 27/8/08 p 10)
There followed some discussion which was really in the form of a debate with his Honour by the father about the correctness of his previous decision. His Honour attempted to bring the father back to the question of the articulation of the grounds for his application for disqualification and said to the father:
So far you've said to me the reason is because you have said unpleasant and uncomplimentary things to me in the past and in your submissions and in other things. I've said to you that's not a ground in itself for me to disqualify myself and I will not do so on that ground. Do you have any other grounds on which I should disqualify myself?
(Transcript 27/8/08 p 11)After some further exchanges the father said:
I'm concerned about the prejudice that exists because you know I've been critical of you.
HIS HONOUR: I said to you this is not a matter which I regard as requiring me to disqualify myself.
[MR MARSDEN]: The question I - the question I asked you in that other room about competence and courage, now that - you could find that offensive, if you like.
HIS HONOUR: I did find it offensive but that doesn't alter my view. I will determine the matter in front of me in accordance with the law on the evidence that I have before me. I do not feel that - I am not concerned about the fact that you've been rude. You were upset. I understand why you were upset.
(Transcript 27/8/08 p 12)Finally, the father concluded with the following remarks:
I guess it just comes down to that - clearly, the people in this room are the most familiar with this case there is and you're familiar with it. In that respect, you're very qualified to hear about it but sometimes familiarity doesn't necessarily mean you'll be the most objective and I'm concerned. I've - I have to be honest. I've lost all trust in your discretion and judgment and I've lost all faith in this so-called justice system. I have no faith in this system anymore.
HIS HONOUR: Well - - -
[MR MARSDEN]: You've taken a child away from a loving and gentle and capable father because of things seven - eight years ago that - foolish behaviour that was never a risk to anyone. I've already written about this in my affidavit. How am I supposed to have any trust in you and the faith in the system.
(Transcript 27/8/08 p 12)What is clear from the passages is that the father seemed to be putting his application on two grounds:-
a)that he had been critical of and offensive to the trial judge, although it was not personal, and
b)that the trial judge, having determined the previous proceedings adversely to him could not bring an independent mind to the matters now before him, namely whether there was sufficient reason for him to be able to proceed with a fresh application seeking contact with his daughter.
In Orleans Investments & Another v Mindshare Communications Ltd (2009) 254 ALR 81 at 93 the New South Wales Court of Appeal (per Giles JA, with whom Spigelman CJ and Allsopp P agreed) said:-
[32] The two “mights” in the test reflect the importance that justice must both be done and be seen to be done, and the need for public confidence in the administration of justice. But the hypothetical lay observer is taken to be reasonable, and although the observer does not have a detailed knowledge of the law or the character or ability of the particular judge, reasonableness involves appreciation of ordinary judicial practice and of the judge’s professional training and obligations of dispassionate decision-making. Reference may be made to the joint judgment of Gleeson CJ and Gaudron, McHugh, Gummow, and Hayne JJ in Johnson v Johnson [supra] at [12]–[13], and to the observation by Callinan J at [80] that —
… it is important to keep in mind that the notional, fair-minded observer is a rational person not unacquainted with the legal process, the oath or affirmation that judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in the case before and after the challenged conduct.
The observation of McHugh J in Vakauta v Kelly (1988) 13 NSWLR 502 at 527 adopted by Toohey J in Vakauta v Kelly (1989) 167 CLR 568 at 584 noted that the person being observed is “a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial”.
As Kirby J said in Johnson v Johnson (supra at [53]) the “fictitious bystander” is not “wholly uninformed and uninstructed about the law in general or the issue to be decided”. Kirby J also said at [53]:
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated…Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious. (footnotes omitted)
As was said by McClelland CJ at CL, Sully & James JJ agreeing in R v Burrell (2007) 175 A Crim R 21 at [11]:
There are many occasions upon which a judge, either at trial or on an appeal, may be asked to reconsider a ruling which he or she has made, a factual determination or a decision upon a matter of law. Matters are routinely returned from an appellate court to the trial judge to be determined according to law. The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge. Such a person, properly informed, would not in my opinion reasonably apprehend that the judge or judges would bring other than an impartial mind to the determination of the matter.
Despite the fact that the written submissions of the father assert that the trial judge was critical, condescending and insulting of him, that was not the submission put to his Honour nor, we add, was there any evidence that this was so. The “behavioural ground”, if it can be so called, related to the father’s assertion that he had been offensive to his Honour. As to this issue, his Honour made it quite clear to the father that, to the extent the father had been critical of his Honour, he understood why the father was upset and had no difficulty in determining the matter in front of him in accordance with the law and upon the evidence. We do not think the lay observer could reasonably have questioned the trial judge’s explanation and would readily have understood the capacity of a judicial officer hearing cases every day to continue to do so impartially despite critical comments or outbursts from time to time from one of the parties. Particularly when parties are self-represented, intemperate remarks born of anger or distress are not uncommon in any jurisdiction but can often be a particular feature of family law litigation where issues are highly emotional and often distressing. The hypothetical lay observer would understand that judges in this jurisdiction are often faced with offensive criticisms and comments, particularly in cases where the issue is as important as the capacity of a parent to spend time with their child. The hypothetical lay observer would understand that, by reason of experience and training, judicial officers dealing with these cases would not be prevented by such outbursts from bringing an impartial mind to the resolution of the questions in issue.
The hypothetical lay observer would also understand that, although this was not such a case, if such behaviour were alone a basis for disqualification, it would be available to litigants to insult and offend the judge as a means of having them removed from hearing the case.
The second part of the argument relates to previous findings and conclusions made by his Honour. It is notable that the father was critical about what he regarded as the error in the findings, rather than the findings themselves. That is, he simply believes that the trial judge’s findings and decision were wrong, notwithstanding the dismissal of his appeal to the Full Court and the refusal of special leave by the High Court.
The second step of the test is the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The father, in oral argument at least, explained that his concern was that the trial judge had formed a view, which he still has, and could not therefore bring an objective mind to bear on the matter. This argument however ignores the nature of the application now being brought by the father. The application does not depend upon an overturning of the findings made by the trial judge in the main proceeding. His case is essentially that things have changed and that it is now appropriate to re-consider whether he should have face-to-face contact with his daughter as a result of what has occurred since the main proceeding. That does not logically require a re-consideration of the findings originally made, even if the father does not accept them. Thus, in our view, there is no logical connection between the matter, namely the application to re-consider whether fresh orders should be made, and the feared deviation from deciding the case on its merits, namely what the father believes to be erroneous findings of fact and conclusions in the main proceeding. Having regard to these considerations, it seems to us that the fictitious fair-minded lay observer is not a person who might reasonably apprehend that the primary judge might not bring an impartial or unbiased mind to the resolution of the questions he was now required to decide at this hearing. Accordingly, this ground must fail.
“Rice & Asplund” grounds
We now turn to the substantive grounds of appeal and propose to deal with Grounds 3 and 6 together, together with Ground 1, which asserts that the decision was contrary to the best interests of the child and overlays the grounds referred to. Grounds 3 and 6, in summary, are that his Honour erred in dismissing the father’s application because he misapplied the “threshold test” arising from Rice & Asplund, and in doing so denied the father procedural fairness.[1]
[1] The full text of Grounds 1, 3 and 6 is as follows:
Warnick J in SPS & PLS (2008) FLC 93-363 said at [1]:
The “rule” in In the Marriage of Rice and Asplund…that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
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
Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
Warnick J opined in SPS & PLS (supra) that:
58.Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv) Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) "Shorthand" statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In summary, the best interests issue arises because there are so many changes in the lives of families that 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.
However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[2]
[2] See for example Jennifer McIntosh ‘Enduring conflict in parental separation: Pathways of impact on child development’ (2003) 9 Journal of Family Studies 63 and Jennifer McIntosh and Richard Chisholm ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Journal of Family Studies 37.
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 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.
Before turning to how the trial judge considered and applied the rule in Rice & Asplund it is useful to look at the issues in this case. It could not be said that the variation being sought by the father was insubstantial. The father was seeking an order which would provide him with face-to-face contact with his daughter in circumstances where a final order had been made preventing any face-to-face contact between them, arguably forever.
In Miller & Harrington (2008) FLC 93-383 Warnick, Boland and Murphy JJ distinguished the rule in Rice & Asplund from procedures such as “striking out” and “summary dismissal”. The Court (at [80]) did not accept that the only way which the rule in Rice & Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest. Importantly, the Court said:
[81] Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a "preliminary" hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
[82] However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
The Full Court then cited from the decision of Wilson FM in Cortes & Cabrera [2007] FMCAfam 293 at [19]:
…However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes (sic) circumstances existed. An applicant’s material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant’s material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent’s material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.
The Full Court concluded the consideration of Wilson FM’s decision in Cortes & Cabrera by saying at [91]:
On a topic that has not been often examined, we think the discussion by Wilson FM a useful one. However, because, as we have said, the topic was not the subject of submissions before us, we do not necessarily express agreement with all that Wilson FM has said nor address further any tension which may exist between those cases which appear to speak of but two choices, either the application of the rule as a preliminary matter taking the applicant’s case at its highest or a full hearing, and those cases that suggest a broader range of process.
Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice & Asplund to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. As the Full Court in Gotch & Gotch [2009] FamCAFC 3 (Bryant CJ, Warnick & O’Ryan JJ) said at [13]:
In Miller & Harrington, the Full Court concluded that, whatever processes were appropriate in a particular case involving the application of the Rice & Asplund principle, it was essential to procedural fairness that there be a clear understanding by the parties and the court of the nature of the court’s enquiry. The Court in Miller & Harrington said, of the particular matter before it:
95.However, if the parties and Barry J assumed that the matter would be determined on the papers, taking the mother’s case at its highest, Barry J went well beyond that parameter.
96.If some other procedure was proposed, that was never made clear to or by the parties. In our view, it is not possible to say that the proceedings were conducted on a mutually understood basis and there is, as a result, merit in the submission that the mother was not accorded procedural fairness.
Discussion of Grounds 1, 3 and 6
In Miller & Harrington (supra) the Court posed the question:
105.Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
It is also important to highlight a certain class of case, of which this is one, where the Court has made findings which have led it to conclude that there should be no face-to-face contact between parent and child. These cases can provide different challenges, both for the applicant and the Court. Usually the reason for such a draconian order has been a finding about particular behaviour of a party, by reason of which it would be contrary to the child’s interest to allow face-to-face contact. Once made, those findings will stand and the changes asserted will usually be the passage of time and/or some amelioration in the underlying causes of the behaviour, such that it is unlikely to occur in the future. The passage of time is not of itself a factor but might become relevant where the risk to the child by certain behaviour is reduced or removed by the increasing age and maturity of the child. These are only examples but they represent some of the conditions under which a party might wish to return to court. If these matters were never to be considered, then a conclusion reached such as in the present case in 2006 that no face-to-face contact was permitted would prevent the father from ever making an application for face-to-face contact, even though the events upon which the original order was made had occurred many, many years before and the child was significantly older. This was what lay behind the comments of Evatt CJ in The Marriage of Zabaneh (1986) 11 Fam LR 167 at 172 (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
In the present case, following the ruling on the disqualification application, which was dismissed, the father commenced his submissions in support of his application for parenting orders. He commenced by asserting that the paramount principle is the best interests of his daughter and then sought to distinguish this case from that dealt with in Rice & Asplund.
First he said that Rice & Asplund involved the seeking of a re-hearing of a matter nine months after the final orders were made, whereas his application was brought two years since the final orders were made. Second he said that, whilst he accepted that there was a need for a “filtering device to keep vexatious or frivolous litigation out of the courts”, this matter was not frivolous but was a serious application. Third he said that, whereas in Rice & Asplund the applicant was seeking a reversal of custody, he was simply seeking contact. That, he asserted, entirely distinguished his case from Rice & Asplund. Demonstrably that contention was incorrect and based on a misunderstanding of the gravamen of Rice & Asplund. Fourth he referred to significant new evidence as follows:
· Records from the contact centre of contact that had occurred since the hearing but prior to judgment in 2006 to show that contact was enjoyed and that he was a capable father.
· A reliance upon what psychiatrist Dr W had said in his original report which he described as “a rehash of what [Dr W] had to say about it, three years ago” and in particular referred to Dr W’s recommendation that there be supervised contact with a caveat that if there were no more offensive behaviour detected, the supervision could be limited to six to 12 months and that that recommendation had been made over three years ago. He asserted that it had been over two years since the final orders had been made and there had been no more offensive behaviour.
· Finally he said that he had received treatment by way of counselling with a psychologist, which both the trial judge and Dr W had recommended and who was prepared to produce a report. Importantly, he said:
The only reason I don't have it today is because I thought it prudent to allow the Court and the respondent the opportunity to be involved in drafting the terms of reference. I don't know exactly what terms of reference they will want to raise and I thought it would be best procedure to have - give them that opportunity to be involved in the terms of reference.
(Transcript 27/8/08 p 16)
He went on to say:
That's perhaps one of the most important points here. It's been two years, not nine months. There's been no further behaviour. In your own standard that you set clearly in your reasons about further evidence from a treating psychologist, that's adducible now. It's adducible. Now, whether you criticise me because I don't have the report today, that's simply because I wanted to give them the opportunity to be involved in the terms of reference. What areas does the Court want [Dr S] to specifically address? Or perhaps that would be raised in cross-examining him during the final hearing.
(Transcript 27/8/08 p 16)
He also raised the possibility of Dr W obtaining an addendum report. He finally said to his Honour:
I'm not asking for a change of custody but simply contact and I've conceded in my application that there may have to be a period of gradually increasing contact, perhaps even a period of supervision. I understand this. I'm not asking to be able to pick her up today after school. I don't want to traumatise her.
(Transcript 27/8/08 p 19)
Counsel for the mother submitted to his Honour that there was no significant change of circumstances that would justify the re-opening of this case. Before adjourning the matter overnight to consider his decision, his Honour pointed out to the father that the references to him having set some standard were in fact a misconstruction of what he had said in his judgment. His Honour said:
I had no confidence that your behaviour was under control, I had added a qualification which reads as follows, which I can understand why you may have been construed as you do. Clearly "in the context", does not mean what you're saying:
If there were evidence that the father is having treatment and if there were evidence from an expert about paraphilia about the effect of such treatment and the likely prognosis, I could feel a little more comfortable about the future.
That was my determination at that point on the basis that you were not receiving such treatment. Now, that doesn't say, if you were receiving it, then I would be prepared to reconsider. I was merely saying that I had no evidence that would enable me to do it at that point. I simply point that out because it's relevant.
(Transcript 27/8/08 p 28)
His Honour then delivered his reasons for judgment the next day.
In his reasons for judgment his Honour dealt with each of the arguments put by the father. He indicated that simply because time had elapsed, that did not mean it was appropriate to begin again. He concluded that the element of time must be considered in the context of other asserted changes and the assessment of the asserted changes in the best interests of S. His Honour noted the father’s assertion that he had committed no further offences, or correctly speaking there had been no further convictions for offences. He noted that was the father’s assertion at the time of trial and that it was not in itself a change but rather part of a context of the consideration of the effect of the asserted change, if there was any.
His Honour noted that there was no merit to the father’s argument that Rice & Asplund could be distinguished because he was not seeking a change of residence (or custody, as it was then called) but rather for time to be spent with his daughter. His Honour noted that in circumstances where the orders sought to be varied were that the father have no parental responsibility for S and no time with S, the changes sought were significant and called into question the entire basis upon which the original decision was based. As to the evidence from the contact centre Marymead, his Honour noted that this was available at the time of trial, it was not properly put before the Court and that it was not open to return to Court following an adverse decision seeking to adduce evidence which was available at the time of trial but which he or she thinks would have affected the determination of the Court in the first instance and produced a more favourable result.
Finally, his Honour dealt with the new evidence that the father sought to rely upon, namely treatment that he had undertaken with Dr S, a psychologist. His Honour noted that this aspect appeared to rely mistakenly upon an interpretation by the father from his Honour’s reasons as providing in some way a condition precedent for his return to the Court. His Honour explained again that this was a misunderstanding of what he had said and the fact that the father had received the assistance that the judge thought he might not did not affect the validity of the judgment. Nor was there any express or implied invitation to return to Court when the condition precedent which he had identified had been complied with.
His Honour went on to say that in any event the question of the value of the evidence about his treatment was not “patent” because there was no report. He noted the father’s willingness to obtain one, but said at [38]:
…even if a report demonstrated unequivocally that [the father] had been receiving treatment, that would not, in itself, provide a sound basis for a reconstitution of all of the proceedings for the following brief reasons…
His Honour then noted that:
· There was a need for an end of court proceedings in the best interests of the child.
· Any re-opening of the proceedings would, as contemplated, require some new report and this would necessarily mean that there should be some resumption of time between S and the father to enable a proper assessment. This could be against the child’s interests if, having adapted to two years or thereabouts of not having her father as a parent in her life, she would have a further intervention and the confusion arising from it only to potentially be deprived yet again of the influence of her father.
· If the proceedings were to subsequently determine that it was appropriate for S to spend time with the father, the intervention would not have been against her interests.
· Ultimately the issue was a matter of balance and in his Honour’s view the disadvantages outweighed the advantages of allowing the case to be re-opened.
His Honour then went on to consider the matters in s 60CC including the importance of a meaningful relationship between S and the father. Having considered the relevant matters, his Honour said that he could find no proper basis to permit the re-opening of the proceedings.
We think it is clear that this was a case in which his Honour thought himself confined to two options; one was to determine the matter on the material before him on the best case of the father as it was; the other was to allow the matter to proceed to a full hearing. He did not consider the issues referred to in Miller & Harrington (supra) arising from the decision of Wilson FM in Cortes & Cabrera (supra) about the potential for other options which in particular may have allowed the father to adduce some further evidence about the treatment he had taken with the psychologist and then to determine on that material whether a re-opening was in the best interests of the child. Alternatively, had his Honour considered that he was not obliged to deal with the application as it was only on the material before him on that day, he may have seen the benefit in allowing the father to produce that evidence. Alternatively, put on another basis, the father was not given an opportunity to present the new evidence and lost the chance to put forward evidence that could lead a court to allow him to put his case for supervised contact.
The father explained to his Honour why he had not produced a report to the Court, that explanation being that he thought it was appropriate for the Court to have some input into the terms of the report, so as to provide it with some assistance. Faulks DCJ did not suggest that that was an inappropriate approach and we think on its face it has some cogency. However, his Honour effectively ignored the reason for the father not having the evidence and went on to determine the matter on the basis that he did not. If his Honour had rejected the evidence of the father as to why he had not produced the fresh evidence, then we could understand better why he proceeded there and then to dismiss the application. However, he did not reject the explanation given by the father as to why he had not produced the report of the psychologist.
Indeed, in paragraph 38 his Honour seems to have jumped ahead to pre-judge the matter, even without the report. Whilst his Honour said that even if a report demonstrated “unequivocally that [the father] had been receiving treatment, that would not, in itself, provide a sound basis for a reconstitution of all of the proceedings”. His Honour then went on to say why. The first reason was that there was a need for an end to court proceedings in the best interests of S and the parties. However, it is difficult to see how his Honour could have reached that conclusion without seeing the report. In suggesting that there was a need for an end to court proceedings, his Honour was effectively saying that there was no further circumstance in which the father could ever re-litigate. That was not a matter which was before his Honour and we do not see that there was any evidence before him which demonstrated that there was a need to end court proceedings. It might be, as we have said, axiomatic that it is desirable that court proceedings be minimised, but we think his Honour was not entitled, without evidence, to effectively say that, whatever the circumstances, there was to be an end to court proceedings conclusively.
Secondly his Honour opined that it would be necessary for S to have some time with the father if an assessment by a court reporter were to occur. His Honour highlighted the detrimental effect this could have. Again we suggest there are two faults with this reasoning. The first is that the father’s proposal did not involve any resumption of contact with S in the first instance. All the father wanted to do was put before the Court some evidence from a psychologist from whom he had been receiving treatment and then to have his case considered. There was no basis, other than his Honour’s own assumption, for concluding that S would need to be involved, or more particularly would need to have a resumption of contact with the father. Secondly, however, even if his Honour was right and there had been a resumption of contact, there was no basis on which he could necessarily conclude that a short time seeing her father, even if it did not continue, would necessarily be contrary to her interests. That was a matter upon which his Honour would have needed evidence before he could form a conclusion.
Thus we conclude that the basis on which his Honour decided that, even with a positive report, the father’s application to have the matter re-heard could not possibly succeed was flawed and based on assumptions rather than any evidence. In our view, his Honour failed to accord the father procedural fairness in not allowing the opportunity to put his case, as he wished, before the Court for determination. The father was in effect expecting the opportunity to put further evidence before the Court but was met with a failure to allow him to do so and the determination of his application on material that did not fully comprise the father’s case. In the context of the seriousness of preventing the father from returning to Court after two years to seek some supervised contact in a case where he had been denied all face-to-face contact with his child, we think his Honour failed to accord procedural fairness.
Insofar as his Honour relied upon the rule in Rice & Asplund to reach his decision, we conclude that the failure to allow the father to put evidence of the changed circumstances he was endeavouring to raise before the Court, meant that the Court was making a decision as a threshold test, or as a preliminary matter, but without allowing the father to present to the Court all of the material that would have put his case at its highest. In a case where the expert, Dr W, had recommended supervised contact in the main proceeding and that the effect of a rejection of the father’s fresh application might be to shut him out of face to face contact forever, the trial judge’s obligation was to ensure the application of the rule in Rice & Asplund was fairly applied, and to accord procedural fairness and not in a way that peremptorily terminated the father’s opportunity to put his case for the Court to allow him to litigate the question of whether there should be some supervised contact. In our view, these grounds should succeed.
Ground 4
Given our findings as to Grounds 3 and 6, we need deal with Grounds 4 and 5 in only short compass. Ground 4 asserts that his Honour erred in finding some of the new evidence in the father’s application could have been before him in the first trial and that all of the evidence about the father’s contact with the child was in fact before him at the first trial. In her Aide Memoire handed up to the Full Court, the mother indicated in respect of this Ground that the records from Marymead were available and tendered by the father at the Full Court appeal on 3 October 2007. She indicated the certificates tendered on 27 August 2008 also predated the Full Court appeal. This of course does not answer the point raised by the father and indeed is confirmation that the evidence was not before the trial judge. It is not clear what his Honour thought of this material. In paragraph 33 his Honour said that:
The evidence, while it may or may not have been relevant in the original proceedings, and it probably would have been relevant, was not put properly before the Court and at the appropriate time.
This material appears in the appeal book at pages 107 to 110 and relates to activities at supervised contact visits at Marymead, which indicate in general terms a pleasant and positive interaction between father and daughter. His Honour’s order was stayed pending the appeal and the visits occurred during this period. Thus it is clear that they were not available at the first hearing. It is difficult to see how his Honour concluded that it was not put properly before the Court at the appropriate time. The interaction was not insignificant because it provided evidence of supervised contact which Dr W had recommended was an option and which the father is now seeking. The father did not seek to introduce this evidence by way of fresh evidence, although it would in our view have been an appropriate subject for such an application. However, it was included in the appeal book and the father seems to have operated on the basis that it was before his Honour as a result of it having apparently been before the Full Court on the previous appeal. In our view his Honour in fairness ought to have clarified this matter with the father and identified the evidence as being something that had occurred since the hearing and given the father an opportunity to put it before the Court by proper means.
The father also raised under the rubric of procedural fairness, that the Court failed to investigate other matters pertaining to changed circumstances, such as changes to accommodation, work and availability and other activities. Whilst the father did not specifically raise these as matters that he wanted to put before the Court, it was, as we have said, clear that he was expecting to be able to adduce further evidence from a psychologist and potentially to add other matters. We think for the reasons given that his Honour misunderstood the nature of the evidence sought to be put before him and erroneously considered it was available at trial. In our view this Ground should succeed.
Ground 5
Ground 5 asserts that his Honour erred in several discretionary findings. Part of the complaint under this heading is directed to his Honour’s conclusion that the potential detriments to S outweigh the benefits to her of the case proceeding and we have already dealt with those matters. The only finding that his Honour could be said to have made appears at paragraph 51 where his Honour said:
There is no evidence before me that the father would be better able to provide for [S's] emotional needs. His emotional presentation during the hearing still seemed to be unduly centred on his own emotional needs rather than [S's].
We doubt if that were a relevant finding, it could stand given that the father was representing himself and had no opportunity to address that matter. Nor indeed did he have any opportunity to address S’s emotional needs. His Honour seems to have assumed that in bringing the application he was in disregard of her emotional needs but there was no evidence to support such a finding. However, his Honour had already concluded, before making that finding, that the application should not succeed and it was not therefore crucial to his decision. We think however that it was a circuitous argument because, if his Honour was correct, then the mere bringing of an application would doom it to failure, if that finding was meant to indicate that the bringing of an application was of itself, and without further evidence, to be “unduly centred on his own emotional needs rather than [S’s]”. We think it clear from the whole context of the application that, whilst the father did wish to have contact with his daughter, he also believed it to be in her best interests to have contact with him. Whether that was correct or not was a matter ultimately to be decided, but it could not be decided upon the mere bringing of the application.
Conclusion
For those reasons we are of the view that the appeal must succeed. The matter should be remitted for hearing on the preliminary issue raised by Rice & Asplund by a judge other than Faulks DCJ. The manner in which the new trial judge intends to proceed with the preliminary matters will be a matter for the trial judge to determine. In order to progress the matter however, we propose to make orders for filing of material including the psychologist’s report, so that the matter is in a position to proceed as soon as it can be listed.
The mother sought that the Full Court re-determine the matter if the father’s appeal were successful, but it will be clear from our reasons that, having found the father was denied the opportunity to file relevant material on which he wished to rely, the matter must be remitted for re-hearing. In addition, although we have found no error in the trial judge’s failure to disqualify himself, we would normally remit a case for re-hearing by a different judge and see no reason to depart from that practice in this case.
The remaining ground of appeal relates to the order that the father pay the mother’s costs (Ground 7). His Honour required the father to make a contribution to the mother’s costs and his order provided for him to pay the sum of $2,750. In determining to do so, his Honour took into account the financial circumstances of each of the parties, together with other matters relevant to s 117(2A). However, it seems that in addition to a capacity to pay the costs, his Honour relied upon the following finding:
However, [the father] has been wholly unsuccessful in his application to the Court. Equally, it might be said that the application by the mother that he be enjoined from bringing any further proceedings before the Court has also been unsuccessful wholly.
His Honour then required the father to make a contribution to costs. Although it is not entirely clear, it seems likely that his Honour was influenced in the order for costs that the father was unsuccessful in his application to the Court. The effect of our orders is to allow the appeal and set aside the orders made by his Honour. Accordingly, in our view, the order for costs which seems to have been reliant upon the lack of success of the father’s application should also be discharged and we will so order.
Although neither party had legal representation before us, each indicated that they had incurred some legal costs in preparing for the appeal and in the circumstances we consider it appropriate to provide the parties with cost certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to this appeal and the re-hearing of the father’s application.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 26 August 2009
1. His Honours decision is contrary to the best interests of the child.
3. His Honour was in error in that he has misapplied the “threshold test” (Rice and Asplund “rule”) and in finding the fathers circumstances were not sufficent [sic] to justify a hearing of the application filed 28 July 2008.
6. His Honour was in error in dismissing the fathers application in the childrens matter filed on 28 July 2008 in the Family Court of Australia. This action has denied the father procedural fairness, natural justice, and both the father and daughter their legislated and basic human right to a meaningful relationship with each other.
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