Masterton and Claiborne - [2010] FamCAFC 3

FAMILY COURT OF AUSTRALIA

MASTERTON & CLAIBORNE

[2010] FamCAFC 3

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PARENTING MATTERS – Federal Magistrate dismissed the mother’s ‘Rice & Asplund application’ and made orders of the Court’s own motion – Mother asserted error in failure to acknowledge the intimidation by the father, placing weight on the mother’s application as it stood without legal advice and failure to find change of circumstance – Consideration of application of ‘Rice and Asplund’ principles following an undefended hearing – No merit in any ground of appeal – Appeal dismissed

House v R (1936) 55 CLR 499
King v Finneran (2001) FLC 93-079
Rice v Asplund (1979) FLC 90-725

APPELLANT:

Ms MASTERTON

RESPONDENT:

Mr CLAIBORNE

APPEAL NUMBER:

2009

FILE NUMBER:

SYC

5342

2007

DATE DELIVERED:

20 January 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Warnick J

HEARING DATE:

20 January 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 August 2009

LOWER COURT MNC:

[2009] FMCAfam 946

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Gibbons

SOLICITOR FOR THE APPELLANT:

Swifte Law

ADVOCATE FOR THE RESPONDENT:

Ms Shea

SOLICITOR FOR THE RESPONDENT:

Legal Aid Commission NSW

Orders

That the appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Masterton and Claiborne is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 96 of 2009
File Number: SYC 5342 of 2007

Ms MASTERTON

Appellant

And

Mr CLAIBORNE

Respondent

REASONS FOR JUDGMENT

On 15 July 2008, an application by Mr Claiborne, for parenting orders relating to his child with Ms Masterton, came before Federal Magistrate Altobelli. A legal representative appeared for the father; an Independent Child’s Lawyer appeared. There was no appearance by or on behalf of the mother.
Altobelli FM ordered that the father have sole parental responsibility for the child, A, born in September 2003; that the child live with the father and that, on certain conditions being met, the mother spend time with the child each Saturday or Sunday, from 10.00am to 5.00pm. Further orders related to other aspects of arrangements for the child and to behaviours of each of the mother and father. One of the orders restrained the mother from bringing the child into contact with a Mr B.
On 22 December 2008, the mother filed an application, seeking new parenting orders. That application came before Altobelli FM on 7 August 2009. The mother was represented by counsel, the father by solicitor/advocate. Altobelli FM dismissed the mother’s application and made orders, of the court’s own motion, similar to those made on 15 July 2008.
These reasons relate to the mother’s appeal against the order of 7 August 2009. Ms Gibbons, of counsel appears for the mother; Ms Shea appears for the father.
I note that the orders sought by the mother are not only that the order of 7 August 2009 be “rescinded”, but also that made 15 July 2008. She further seeks that “the matter” be listed for interim and final orders.
The grounds of appeal are as follows:
1.The Federal Magistrate did not put adequate weight on the assertion that the father had threatened the mother if she turned up to the Family Court hearing.
2.The Federal Magistrate put too much weight on the merit of the mother’s application that was filed on 22 December 2008 without legal advice.
3.The Federal Magistrate failed to find a change of circumstance.
In her summary of argument, Ms Gibbons has raised some points which do not connect with a ground of appeal. The submissions for the father respond to the arguments that the mother raises. I will discuss grounds 2 and 3 together, and in that discussion deal with those other points that deserve mention, rather than try to reframe those points as grounds of appeal.
The first ground relates to the explanation of the mother for her non-attendance at court on 15 July 2008. The mother is, of course, out of time to appeal the orders of 15 July 2008 and indeed, though as I have indicated, the mother seeks on appeal that the order of 15 July 2008 be rescinded, that order is not identified as an order appealed.
That of course does not mean that the assertion made in this ground cannot be argued, as the Federal Magistrate’s view of what happened on 15 July 2008 might have affected the approach he took to the mother’s request to, in effect, revisit the matters with which those orders dealt. I will later set out the Federal Magistrate’s discussion of the mother’s non-attendance on 15 July 2008, but before addressing the specific grounds of appeal, set out a summary of the learned Magistrate’s reasons, which he delivered ex tempore.
Altobelli FM described the matter before him as follows:
1.…Originally the matter was listed simply as a Rice & Asplund application, as that is commonly known. However, an issue has arisen about the interpretation of the orders that were made on 15 July 2008 and I think it is essential and very much in the interests of [A] that I resolve any outstanding issues about the interpretation of these orders and in fact, that I do so before dealing with the Rice & Asplund application.
2.By way of background, on 15 July 2008, orders were made at a final hearing, at which the father appeared with his solicitor. The Independent Children’s Lawyer appeared and there was no appearance on behalf of the respondent mother. … I do not think it is in dispute that as at 15 July 2008 the main issue in the litigation was protecting [A] from the consequences of what I think even the mother agrees was her drug dependency at that time.
[The references to Rice v Asplund are to the decision reported in (1979) FLC 90-725.]
His Honour then set out a procedural history, which contains a discussion of the mother’s non-attendance on 15 July 2008 and as indicated parts of that discussion will be later set out in relation to ground 1.
The learned Magistrate then proceeded to address the issue about the interpretation of the 15 July 2008 orders, in particular, as to how they applied, in the events that transpired after those orders were made, to the question of the mother’s compliance with testing for illegal drugs.
His Honour recounted how the mother had been in custody from 21 July 2008 to 1 October 2008 and in a rehabilitation centre from 2 October 2008 to 11 July 2009, that is, until not quite a month prior to the hearing before Altobelli FM, leading to the orders appealed.
On the question of interpretation, Altobelli FM concluded;
12.It is interesting to note that nobody has submitted to me that the mother has failed a drug test. Indeed, the evidence indicates that she has done the tests and she has been clean. Against that, of course, she has only just got out of rehab. If she were not clean in rehab, there would be a real issue here. What I am going to do is this: I am satisfied that I have to make an order that is in the best interests of [A]. I am satisfied that I have the power to vary orders of my own motion, irrespective of what either parent asks for. What I have got in mind is this: I am going to make an order to the effect that the drug testing regime continue until the end of September.
13.The reason why I am doing that is this: it is all very well to comply with drug testing when you are in rehab, the real work starts after. If the mother can satisfy the father and the court that she can be clean right through to the end of September, during a period when she is not in rehab, then I am prepared to vary the order, so that the requirement for urinalysis is no longer necessary.
Altobelli FM then turned to consider “the Rice & Asplund application”. Relevant passages will, as necessary, be set out when discussing grounds 2 and 3 and other points raised.

Did the Federal Magistrate not put adequate weight on the assertion that the father had threatened the mother if she turned up to the Family Court hearing?

Of the history of proceedings, and in particular attendance of the mother at court from time to time, the Federal magistrate said:
4.…The application in question was initiated by the father back in July 2007. It came before me on 7 August and an order was made for [A] to be returned to his father. There was no appearance by the respondent on that occasion. It came back before me on 15 August 2007. This time the mother was represented. The matter came before me again on 2 October. An Independent Children’s Lawyer appeared for the first time and the mother was represented. On 24 October, once again the matter came before me. There was no appearance for the mother. On 19 November, interim orders were made. Again, there was no appearance for the mother. On 6 February 2008, when the matter had been listed for an undefended hearing, the mother appeared by telephone and the maternal grandparents appeared by leave. On 19 March 2008, the matter was again mentioned. There was no appearance by the mother. On 15 May, the matter had been set down for undefended hearing again and it should be noted that this was the second time that it had been listed for undefended hearing, the mother not having appeared.
5.However, on that date, Ms Franklin-Bell appeared for the mother. The matter was adjourned to 15 July for a further undefended hearing and on this occasion, there was no appearance for the mother. So up until the date that the first orders were made, that is, 15 July 2008, there had been a number of appearances. In fact, it looks like there were nine court events and the mother did not appear at five of them, and on another occasion, her solicitor appeared but without the mother and was forced to withdraw. As I have indicated before, there were serious concerns about the mother’s drug dependence and there is no doubt in my mind that the orders that were made on 15 July were very much the orders that were in the best interests of [A].
In her written submissions, Ms Gibbons suggested that Altobelli FM did not take into account the mother’s affidavit evidence about threats that the father had made to her, which prevented her from attending court on many occasions.
I do not accept that submission. When turning to consider the mother’s case that circumstances had changed since the 15 July 2008 orders, Altobelli FM listed the matters raised by the mother. He said:
17.… and then I think a fourth limb and a necessary part of the mother’s case is that she has a reasonable explanation for non‑participation in the earlier case. I do not accept that any of the matters asserted by the mother represent changed circumstances. …The mother provides various reasons for why she did not participate in the first proceedings, but the procedural history that I am given I think speaks for itself.
18.In any event, the mother’s application is a fresh application to vary orders. …
Moreover, given what the Federal Magistrate said in his Judgment of 7 August 2009, about the foundation for the orders he made on 15 July 2008, any issue about the reasons for the mother’s non-appearance on 15 July 2008 was by no means central to the determination of the mother’s application of 22 December 2008, which was the application before the Federal Magistrate on 7 August 2009.
In her written submissions, Ms Gibbons refers to the mother’s “… new-found ability to resist such threats” and that Altobelli FM “did not take into account the contrast in the mother’s attendance at the procedural and final court appearances in the appeal as against her absence from the first proceedings…”.
In so far as the mother raises her present capacities, it is not appropriate that I take any account of what are mere assertions which, even if subject of a proper application to adduce further evidence, would seem contentious and unlikely to be received.
In so far as the submissions relate to the position of the Federal Magistrate on 7 August 2009, given his analysis of the procedural history, and given the very recent emergence of the mother from institutionalisation, I see no error in Altobelli FM’s not drawing any inferences, for which the mother now contends, about her parenting capacity.
In my view, there is no merit in ground 1.

Did the Federal Magistrate put too much weight on the merit of the mother’s application that was filed on 22 December 2008 without legal advice?

Did the Federal Magistrate fail to find a change of circumstance (when he should have)?

I discuss these two grounds together, and other points raised.
When Altobelli FM came to discuss “the Rice & Asplund application”, after setting out a statement of the applicable law, he said:
16.The question I have to ask myself is: taking the applicant’s case at face value, at its absolute highest, is there a sufficient change of circumstance that would warrant revisiting the question of what is in the best interests of [A]? Now, the mother submits to me, through her counsel and in her evidence, that the changed circumstances are as follows: firstly, that she is drug free, though as I note, she has only just out of rehab. Nobody today has mentioned that there is a real risk that a drug dependent person will relapse. Part of the reason why I am going to impose that additional two months of drug testing is to guard against the possibility of relapse. In any event, the first limb of the mother’s case is that she is drug free.
17.The second limb of the mother’s case is that she has a new child. The third limb is what [A] has allegedly said to her, and then I think a fourth limb and a necessary part of the mother’s case is that she has a reasonable explanation for non‑participation in the earlier case. I do not accept that any of the matters asserted by the mother represent changed circumstances. Firstly, the mere birth of a new child is not in itself a matter that would warrant revisiting [A’s] arrangements, and the Full Court in King & Finneran made that quite clear. I cannot put any weight on what [A] is alleged to have said to his mother so I cannot rely on that. The mother provides various reasons for why she did not participate in the first proceedings, but the procedural history that I am given I think speaks for itself.
18.In any event, the mother’s application is a fresh application to vary orders. It is not an application set aside that judgment. The main question is does the fact that she asserts that she is drug free amount to a change of circumstance? I do not think so. The orders that were made on 15 July specifically contemplated a day when the mother would be drug free, and on that basis nothing has changed. The order provides that the mother, who lives [on the Central Coast], is to spend time with [A], who lives in Sydney, each Saturday or Sunday from 10 am to 5 pm in Sydney. The evidence before me indicates that even though the mother has substantially complied with the order for drug testing, it could not be said that she has substantially complied with the opportunities given to her to spend time with [A].
19.There are issues about [Mr B] that remain unaddressed and are simply not dealt with in the mother’s affidavit. As I indicated before, I do have concerns about whether she has been fully frank with me in terms of her circumstances. The mother’s application itself is, I think, perhaps ill-conceived and very poorly thought through. The orders that she seeks are really quite impracticable, having regard to the distance that separates them, specifically equal time, though I note that it may be that she meant when he goes to school, but I am just not quite sure that the mother’s application as presently framed would have any chance of success anyway.
…
21.So as at today I do not think it is in the best interests of [A] for the issue of parenting orders to be revisited, save insofar as the clarification that I have made. However, I foreshadow that in the not too distant future, subject to the matters that I have referred to and other matters, it may well be that this issue does need to be revisited. If that is the case, it ought to be done in the manner prescribed under the Family Law Act; namely, with attendance at a family relationship centre and undertaking family dispute resolution.
The child to whom Altobelli FM referred was D, born in March 2009. His father, Mr B, is the person in respect of whom the mother was restrained by the 15 July 2008 orders from bringing A into contact.
As to the first argument raised, that the Federal Magistrate put too much weight on the merit of the mother’s application, that application was for a change of residence. Ms Gibbons suggests, probably correctly, that such a proposal was unrealistic.
The proposition that the Federal Magistrate should not have taken the mother’s application as it stood, is not one of obvious strength.
In any event, Altobelli FM’s observations about the application were made by his Honour after he had rejected the mother’s case for other reasons. The argument is not maintainable.
Ms Gibbons also argued that the provision made for the child to spend time with the mother was in any event inadequate. However, again her submissions involved a mix of assertions about the mother’s “new-found” parenting skills. In the situation that presented to the Federal Magistrate in August 2009, with the mother so recently out of institutions and, for whatever reason, having seen A on only half-a-dozen occasions since July 2008, I am not satisfied that the orders for time to be spent between child and mother were not well open to the Federal Magistrate.
As seen in paragraph 17 of his reasons, Altobelli FM referred to the decision of the Full Court in King v Finneran (2001) FLC 93-079. Ms Gibbons also submits that King v Finneran is distinguishable on its facts from this case. Whether that is so or not, all that Altobelli FM said was that the case was authority for the proposition that the mere birth of another child is not of itself a matter that would warrant revisiting arrangements.
The mother’s argument here is more that the fact that Mr B is the father of the new child and she is restrained from bringing A into contact with him is a circumstance that deserves further consideration. Altobelli FM was alert to this, but, as seen, found in paragraph 19:
19.There are issues about [Mr B] that remain unaddressed and are simply not dealt with in the mother’s affidavit. …
In her summary of argument, Ms Gibbons points to some other matters, such as the mother’s more recent care of D, which have apparently arisen or developed since the August 2009 hearing before Altobelli FM. Again, the mother has made no application that this court receive further evidence. Even had she, it is unlikely it would have been acceded to, as such matters as the mother asserts are almost invariably appropriately tested in a hearing at first instance.
Ms Gibbons also suggested that the learned Magistrate had summarily dismissed the mother’s application, but had not found that it lacked a reasonable cause of action or was frivolous or vexatious. Summary dismissal applications are not the same as applications which are heard and in respect of which, as a threshold question, the application of the principle in Rice v Asplund is considered. In my view it is clear that the Federal Magistrate did not confuse the two types of process.
The mother also complained that the Federal Magistrate had placed undue weight on the omission from her affidavit of information that she had been in gaol for three months.
As to that, Altobelli FM said:
8.What actually happened is as follows. According to the mother’s evidence and the submissions made by her counsel, the mother was in custody from 21 July 2008 to 1 October 2008. I am surprised that this evidence was not contained in the mother’s affidavit, that it was the father who refers to it in passing and that I had to get the information from the mother’s counsel. The mother, who is in court, and therefore can listen very clearly to me, needs to understand something: when the court makes a decision in the best interests of the child, it has got to be able to trust the parents.
9.The commencement of trust starts when parents put all their cards on the table and tell the court about themselves, warts and all. Here the mother is saying, as part of her case, “I have gotten over the drug addiction”, the court needs to know everything about you, including why you were in gaol and should not have to extract that information, like a dentist extracting a wisdom tooth. That is something that should appear in the affidavit and, quite frankly, you get brownie points for putting it in your affidavit. There was still in mind an issue of to what extent I can trust the mother, in terms of not providing this information.

I do not discern that his Honour subsequently made any significant findings against the mother, on the sole basis of the observations just quoted. Indeed, the only reference to the observations merely supports his Honour’s remarks in paragraph 19 of his reasons, about the mother’s failure to address concerns about Mr B. I do not consider Altobelli FM placed inappropriate weight on the omission from the mother’s affidavit.
Finally, the mother argues that the principle derived from Rice v Asplund did not apply to the 15 July 2008 orders, because they were made in her absence. There is no authority for that bald proposition, which I reject. However, that is not to say that the actual application of the rule may not be affected, even significantly, by whether the order that the applicant seeks to vary was made after a final hearing, by consent, or in default of opposition.
For one thing, the capacity of the applicant and of the court to identify change of circumstance may differ. If reasons for the initial orders are available, the then existing circumstances may be clear. If the initial order was by consent, the circumstances may not be clear but, in the absence of claims about undue influence or the like, at least the subsequent court may start with the inference that the applicant for change conceded that the order was proper at the time it was made.
If orders are by default, the subsequent court may start only from the base that the court thought that in the circumstances at the time, including the absence of opposition, the orders were proper.
In the last two situations, much may depend on what the applicant for change asserts about the circumstances at the time of the initial order.
Not only does Ms Gibbons not demonstrate that on 7 August 2009 the mother made an issue about the circumstances as at 15 July 2008, but rather, she concedes that the mother’s case on 7 August 2009 concentrated on alleged changes of circumstance and further, that, given the mother’s drug dependency at July 2008, she may not have then been in a position to oppose the orders sought by the father.
Associated with the argument just dealt with, the mother now complains that, in his affidavit used on 7 August 2009, the father did not address his own history of drug use. However, as just explained, as the cases were presented, the learned Magistrate was properly focussed on the mother’s case as to alleged changes in circumstances since the 15 July 2008 orders.

Summary

A feature of the decision of the Federal Magistrate was the timing of the hearing, coming almost immediately after the mother’s discharge from an institution which, together with her time in prison, took up the great bulk of the time since the orders, the variation of which the mother sought.
It may be that circumstances have now moved on, as Altobelli FM anticipated they might, but that is not to say that Altobelli FM’s decision was wrong at the time it was made.
The decision appealed was a discretionary one. Borrowing terminology used by the High Court in House v R (1936) 55 CLR 499, I am not satisfied that Altobelli FM acted on any wrong principle, allowed extraneous or irrelevant matters to guide him or affect him, mistook any fact or failed to take into account some material consideration.
The appeal should be dismissed.
Neither party seeks an order for costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate:

Date: 20 January 2010