MCCABE and WEEDON
[2018] FCWA 122
•5 JULY 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: MCCABE and WEEDON [2018] FCWA 122
CORAM: THACKRAY CJ
HEARD: 28 FEBRUARY 2018
DELIVERED : 5 JULY 2018
FILE NO/S: PTW 6799 of 2009
BETWEEN: MR MCCABE
Appellant
AND
MS WEEDON
Respondent
Catchwords:
APPEAL - CHILDREN - Variation of parenting orders - Appellant seeks leave to appeal orders made by a Family Law Magistrate - Where appellant sought to vary parenting orders made in 2013 - Adequacy of reasons challenged - Marsden v Winch (2009) 42 Fam LR 1 considered - Where Rice and Asplund (1979) FLC 90-725 is sought to be invoked, the reasons for the earlier decision should be considered - Where the primary judge did not adequately consider the earlier decision of the court - Decision attended by sufficient doubt to justify the granting of leave to appeal - Where there would be a substantial injustice if leave was not granted - Leave to appeal granted - Held primary judge did not give adequate reasons for decision - Appeal allowed - Re-exercise of discretion - Matter remitted - No order as to costs.
Legislation:
Family Court Act 1997 (WA)
Representation:
Counsel:
| Appellant | : | Mr Beckerling |
| Respondent | : | Mr Hooper SC |
Solicitors:
| Appellant | : | Bannerman Solicitors |
| Respondent | : | Paterson & Dowding |
Case(s) referred to in decision(s):
CDW & LVE (2015) FLC 93-683
CDW and LVE [2014] FCWAM 244
Marsden v Winch (2009) 42 Fam LR 1
Rice and Asplund (1979) FLC 90-725
Vilmar and Groober [2017] FCWA 16
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1The father seeks leave to appeal orders made by Family Law Magistrate Calverley on 2 June 2017 summarily dismissing his application for a variation of parenting orders made in 2013. The mother opposes the granting of leave and the appeal itself, if leave is granted.
Leave to appeal
2The proceedings were determined under the Family Court Act 1997 (WA) (“the State Act”). It is common ground that leave to appeal is therefore required: CDW & LVE (2015) FLC 93-683.
3The principles concerning leave to appeal under the State Act were discussed by O’Brien J in Vilmar and Groober [2017] FCWA 16, albeit in the context of financial proceedings. I adopt his Honour’s learned discussion and therefore proceed on the basis that the father must establish that the decision is attended with sufficient doubt to warrant the grant of leave and that a substantial injustice would result from a refusal to grant leave.
Background
4The mother and father commenced cohabitation in 2008, shortly before the birth of [Mark], their only child, in 2008. Mark remained with the mother when the parties separated in 2009. The mother moved to [Suburb A], which is a long way from the father’s home in [Suburb B].
5The father commenced proceedings for parenting orders in late 2009. Interim orders were made in April 2010 and on various dates thereafter. Following a three day trial in December 2012, and after considering a Single Expert report from [Dr A], Family Law Magistrate Moroni delivered judgment in January 2013. Mark was then four years of age.
6His Honour’s orders provided for:
a. Equal shared parental responsibility;
b. Mark to live with the mother;
c. Mark to spend time with the father each week in 2013, at defined times, which included two nights every week;
d. Mark to spend time with the father in 2014, at undefined times, but to include four nights a fortnight;
e. Mark thereafter to spend time with the father, again at undefined times, but to include five nights a fortnight;
f. Mark to spend time with the father during school holiday periods, to include half of the holidays commencing in April 2014; and
g. Liberty to apply for definition of the contact orders.
7Magistrate Moroni recorded that although the father sought an order for equal shared parental responsibility, it was the mother’s case that:
69… the relationship between the parties themselves is so poor that they would not be able to work together effectively to make decisions for the child, in his best interests, regarding major long‑term issues.
70… the parties simply lack the capacity to communicate with each other to the extent necessary to make equal shared parental responsibility a viable option.
8His Honour nevertheless found at [76] that the parties had “the capacity to consult each other about major long-term issues and to make a genuine effort to come to a joint decision” as required by s 89AC of the State Act.
9Noting there was a dispute about Mark’s education, his Honour found at [81] that “once the Court makes its decision about the amount of time the child is to spend in each respective household, it is likely that the dispute around the child’s place of education will evaporate, at least in the short term”.
10In dealing with issues concerning Mark’s health, his Honour said:
87… it is difficult to see how there is likely to be any substantial differences between the parties into the future. Both parties want nothing but the best for the child and it would appear that both would follow recognised qualified medical advice.
11His Honour went on to say, when ordering equal shared parental responsibility:
98… the Court is left well satisfied that the parties do have the capacity to work together cooperatively to try to make decisions jointly about major long-term issues. It is not so much a question of capacity, but a question of will.
99Now that the Court has decided that there should be an order for equal shared parental responsibility, the Court trusts that both parties will accept the decision on that issue, in addition to all of the other outstanding issues, in good grace. The Court is satisfied that the parties are well able to discharge their responsibilities under s 89AC of the [State] Act.
12Toward the end of his judgment his Honour said:
300At this stage, the child is far too young for any views which he may express regarding his living arrangements to be given any significant weight. However, when the child is old enough and mature enough to express a considered view, then there may be a case for revisiting the arrangements which will be put in place following the delivery of these reasons. However, all that is a matter for another day, several years hence.
…
319As a final observation, the Court should indicate that it ought not to be assumed that the intention of the Court is that the orders which will take effect as from the beginning of the 2015 school year should operate for the balance of the child’s minority.
320It is certainly possible that in a couple of years time the prevailing circumstances might be such as to mandate a review of the arrangements which will be put in place as a consequence of the delivery of these reasons.
321It may be that the parties will be living closer together in a few years time. It may be that the relationship between the parties themselves will improve to the point where an equal time arrangement, or an arrangement closer to equal time, might be reasonably practicable.
322Moreover, whilst the child is presently too young for any expressed views to carry any significant weight with the Court, as the child grows older, any views he may express will carry greater weight.
13In March 2014, following a hearing “on the papers”, Magistrate Moroni made an order defining the father’s time with Mark during school terms in 2014, which preserved the regime of four nights a fortnight.
14In January 2015, Magistrate Moroni was once again called upon to define the 2013 orders, this time to deal with the selection of the five nights a fortnight the father was to have with Mark from the start of the 2015 school year.
15In his 2015 reasons, Magistrate Moroni said (emphasis added):
7.The Court had hoped that with the passage of time following the delivery of judgment on 25 January 2013, relations between the parties would improve and they would be able to make their own arrangements from time to time in relation to the care of their son. Unfortunately, the passage of time has done little, if anything, to calm relations between the parties and, unfortunately, at the moment there is still a reasonably high level of conflict between the parties, which does not appear to be likely to abate at any time in the foreseeable future.
…
9Against that background, it has become necessary for the Court, from time to time, to make rulings necessary to define and redefine the parenting orders made on 25 January 2013. The parties have been able to come back to Court for these rulings via what might be described as the shortcut method, that is to say, by way of filing form 2 applications and form 2A responses, with supporting affidavit material, and with the resolution of such proceedings being effected by argument on the papers.
10Initially, the Court had anticipated that it would not be a major undertaking for it, if it became necessary, to fine-tune its orders of 25 January 2013, but unfortunately, such has not proved to be the case. As indicated to the parties when the argument took place earlier this month, the object of the exercise for the Court is simply to define and redefine the necessary orders of 25 January 2013 and any subsidiary orders made subsequent thereto.
11The Court explained that if either party is seeking a substantive change to any of what might be described as the more important orders made on 25 January 2013, then it will be necessary for that party to file a form 1 application which will then have to be programmed in the usual way and which will then have to be the subject of a fully-defended hearing of the type which the parties experienced in December 2012. So, at this point, it is important to note that for the purposes of the present exercise, the Court does not propose to make any substantive changes to the structure of the orders it made in January 2013.
16His Honour went on to give reasons for the orders he ultimately made. For present purposes, the most important order was for the father’s five nights a fortnight with Mark to be divided into three overnight periods. The result is that Mark never spends more than four nights in succession in the same home during school terms. He also has to travel from Suburb B [a southern suburb] to his school in the far northern suburbs on three different mornings each fortnight. This is the type of definition of the orders the father wanted, and the mother was “content” with that regime too, although his Honour said it appeared she would have been agreeable for the five nights to be taken in two tranches or even rolled into just one period (at [21] and [22]).
17His Honour then said (emphasis added):
53Finally, there is the issue of parental responsibility, and in that respect, each party seeks particular qualifying orders. On reflection, and acknowledging that many of the issues raised by the parties under this head are very important, the Court is not persuaded that it should make any orders which qualify or vary the provisions of paragraph 2 of the orders made on 25 January 2013. That is to say, the Court has made a final order that the parties have equal shared parental responsibility for the child and the Court is not satisfied it needs to make any supplementary orders.
54The [State] Act requires the parties to consult with each other and to work together to make decisions jointly about major long-term issues affecting the child …
18In April 2015, three months after Magistrate Moroni delivered his judgment, the father filed an Initiating Application seeking discharge of all parenting orders other than the order for equal shared parental responsibility. In lieu of the existing regime, the father sought that during school terms he would have Mark for seven nights each fortnight, broken into two periods. The father also sought detailed orders to permit each party to take Mark to see General Practitioners, while requiring consultation about “appointments with specialists, consultants or at hospitals”. Detailed orders were also sought to facilitate interstate or international travel during each parent’s time with Mark, including an order about his passport. The 2013 orders had made no provision for these matters.
19On 9 June 2015, the mother filed a Response in which she sought that the father’s application be dismissed on the basis of the rule in Rice and Asplund (1979) FLC 90-725 and on the basis that the proceedings were vexatious.
20On 17 July 2015, as ordered, the father filed an affidavit setting out what he said were the changed circumstances since the 2013 orders were made. The mother failed to file the reply affidavit she was ordered to file, but instead relied upon the Case Information Affidavit she had filed with her Response.
21On 8 September 2015, the matter came before Magistrate Calverley. Having heard argument, his Honour reserved his decision.
22On 8 December 2015, the father filed an Application in a Case seeking, inter alia, an order for both parties to follow the recommendation of doctors concerning an operation to treat a medical condition Mark was allegedly experiencing.
23On 6 January 2016, the mother filed a Response seeking “full parental responsibility and or full medical responsibility for [Mark]”. Inter alia, the mother also sought an order for the cancellation of the operation the father had booked for Mark in 2016.
24On 7 January 2016, the father filed an Amended Initiating Application, seeking sole parental responsibility, while continuing to propose that Mark have equal time with each of his parents.
25On 12 January 2016, Magistrate Calverley handed down his judgment arising from the September 2015 hearing. In his reasons, his Honour recognised that the orders of March 2014 and January 2015 were “simply by way of definition” of the 2013 orders and “were not made as a consequence of the parties parenting applications being re-litigated” (at [12]).
26His Honour also recorded what Magistrate Moroni had said at [322] of his 2013 judgment to the effect that Mark’s views “will carry greater weight” as he grows older. Taking this into account, his Honour acceded to the father’s application for a new report to be obtained from Dr A concerning Mark’s wishes and other matters. His Honour declined to dismiss the father’s substantive application, but said:
55After the publication of the Single Expert report and in fact during any time up until the conclusion of the proceedings, there is nothing to preclude the mother from seeking a further order that the proceedings be dismissed.
27His Honour otherwise set down the competing claims concerning Mark’s medical operation for a trial on 21 March 2016.
28On 10 March 2016, the mother filed a minute of final orders for the trial in which she again proposed that she have “Full Parental Responsibility an[d] full medical responsibility for [Mark]”. At the trial on 21 March 2016, the mother continued to oppose Mark having the operation the father considered he should undergo. She did so in the face of a joint recommendation by two doctors, including the doctor on whose opinion she had originally relied.
29The decision about the operation was handed down on 4 April 2016. Magistrate Calverley permitted the operation to go ahead. He declined to deal with other orders sought by the mother, saying they “will be determined at the further hearing of the ... substantive applications” (at [49]).
30In the meantime, Dr A had provided his updated report, dated 23 March 2016.
31On 26 May 2016, Magistrate Calverley made orders for the filing of trial affidavits and adjourned the proceedings to a Readiness Hearing in March 2017, in anticipation of a 2–3 day trial.
32On 10 June 2016, the mother filed an Application in a Case seeking the dismissal of the father’s application on the basis of the rule in Rice and Asplund. On 28 July 2016, the father sought the dismissal of the mother’s Application. These competing claims were set down for hearing on 25 November 2016.
33On 5 October 2016, the father filed an Application in a Case seeking, amongst other things, permission to be able to take Mark to [City C] for the funeral of Mark’s [relative]. The father’s affidavit explained that the relative was elderly and unwell and “will pass away one day … maybe soon”. The Application also sought an order for the mother to administer a [medical treatment] for Mark.
The hearing before the Magistrate
34The applications came on before Magistrate Calverley on 25 November 2016, some eight months after Dr A’s updated report had been published. The timing is important as there was then further delay before the judgment was delivered on 2 June 2017 – i.e. judgment was delivered more than 14 months after the report was prepared. It should be noted that part of this delay arose from an unsuccessful application made by the father to adduce further evidence.
35His Honour informed the parties at the outset that the matter would “obviously” be resolved “by way of submissions on the basis of the affidavits you’ve filed”. There was an issue on appeal as to whether the father’s affidavit of 17 July 2015 was before the Magistrate. Notwithstanding what the father said in reply to a leading question from the Magistrate, I am satisfied that the affidavit was before the Court. The father had been ordered to file it to set out the evidence constituting the change of circumstances and he referred to it in his submissions without objection (transcript, 25 November 2016, p 18).
The reasons for decision
36Given that a primary challenge in the appeal concerns the adequacy of the reasons, it is necessary that I set out much of what his Honour said.
37Having set out the background, his Honour referred to his January 2016 decision by saying:
In my reasons for decision I referred to the Father's submissions which can be summarised as follows:
a)when the orders were made on 25 January 2013 [Mark] was a young child;
b)that in his Honour Magistrate Moroni’s judgment he recognised that as [Mark] got older that the arrangements for his care would need to be reviewed;
c)the Father’s counsel at the hearing specifically referred me to paragraph 322 of his Honour’s judgment which stated “moreover, whilst the child is presently too young for any expressed views to carry any significant weight with the court, as the child grows older, any views he may express will carry greater weight”;
d)[Mark] has expressed a view to spend more time with the Father;
e)that [Mark] being at that time 7 years of age and having previously been found by Dr [A] to have above average intelligence, [Mark]’s current views may now carry more weight and Dr [A] should be requested to provide a report to ascertain, amongst other things, [Mark]’s current views.
38His Honour went on:
At the hearing of the current application, I asked the Father if he could summarise what he considered to be the significant change in circumstance that I should have regard to.
The father stated that:
·The trial was 4 years ago;
·[Mark] is now older;
·[Mark] says he wants to spend more time with me;
·The Mother won’t communicate with me;
·The Mother is telling [Mark] about “bad e-mails”;
·Medical issues have arisen;
·I want travel issues and passport issues to be resolved.
39His Honour recorded that the mother had confirmed that the substantive orders proposed in her Response (which included a claim for sole parental responsibility) were sought only in the alternative if the father’s application was not dismissed. His Honour did not record that the father had protested about the mother being permitted to reframe her case in this way (having maintained a claim for sole parental responsibility and only announcing it was an alternative proposal after hearing the father’s argument about the illogicality of asserting there were no changed circumstances while herself seeking a variation of the 2013 orders).
40Having referred to the applications concerning Mark’s operation, the proposed trip to City C and the medical treatment, his Honour said:
The fact that these applications have been made in themselves, in my view do not amount to a change of circumstances that would warrant re‑litigating the orders that have been made for [Mark]’s care. There are issues that arise from time to time along with issues such as schooling, which would generally be determined as discrete issues as and when they arise.
41His Honour also recited these paragraphs from Dr A’s most recent report (emphasis added):
36.[The father] is of the view that because [Mark] keeps asking to stay with him he feels he’s better placed to have the care of [Mark]. He does not seem to understand that children like being in the moment and that just because [Mark] wants to be with him does not mean that he does not want to be with [the mother]. I also suspect that [Mark] may say things so as not to upset his parents.
37.… however, [the mother] also presented as somewhat stressed and tired. I found at times her views were quite stubborn-minded, and she describes significant avoidance in dealing with [the father], to the point where even seeing an email triggers an emotional reaction. In my opinion this is consistent with unresolved emotional issues.
…
42.5 years down the track, this case looks remarkably similar to the dynamics seen previously, although the children are [sic] now older. The parties continue to have intractable conflict which is equal to, or worse than, when I had seen them previously. I am not satisfied that there is anything which can be done to help resolve this, although I do firmly recommend that the Mother undertake specific treatment to see if that can help lower her emotional reactivity around dealing with [the father].
…
45.[The father] would like the custody arrangements reversed in his favour, with the Mother to have what he has had. I am not satisfied that such a change would make any difference to any of the dynamics and, if anything, it is likely to increase the speed and likelihood that the child aligns with his Father against his Mother. There will be a time in the near future where longer blocks will work better for [Mark] rather than the frequent changes, but at the moment he appears happy with this. As I understand it, the school holidays are on an equal basis and I would recommend they stay on an equal basis.
…
47.The parties will need to start working on an agreed high school, or have a Hearing to make such a determination, as enrolments need to occur sooner rather than later.
42In discussing legal principles, his Honour adopted this extract from CDW and LVE [2014] FCWAM 244, where Family Law Magistrate Andrews drew on the authorities, including Rice and Asplund, to state the law:
19.The authorities to which I was referred make it clear that each case turns on its own facts but there are some things that I take from those authorities when considering the facts of this case and that is:
· The best interests of the child remain throughout the paramount consideration;
· It is usually in the interests of the child that the orders made by the Court are treated as determining the dispute and be given the necessary support;
· The proper administration of justice requires orders not be changed unless there is sufficient and weighty new facts and circumstances which throw sufficient doubt on the desirability of continuing the arrangements brought about by the previous order;
· The Court should be reluctant to assume jurisdiction too soon after there has been a full and adequate hearing;
· The change needs to be significant or substantial – a matter of importance, of consequence, of real worth, of ample or considerable amount, quantity or size more than which would occur by the passage of time;
· The change must be such a Court would be left in no doubt that it was necessary to re-litigate the parenting issue; and
· The change or fresh circumstance must be such that, if taken into account, there is a real likelihood that a change in orders may follow.
43After the abandonment of one of the grounds of appeal there is no challenge to this summary of the law, which was later approved by the Court of Appeal as being “entirely consistent with the previous cases”: CDW & LVE (2015) FLC 93-683 at [95].
44I now come to the central part of the Magistrate’s reasoning.
45Under a heading “Discussion” his Honour said:
It is for the Father to put evidence before the Court of a sufficient change in circumstances to warrant re-litigation of the arrangements for [Mark]’s care. The Father’s case remains much the same as it did when he commenced the current application before the Court.
The Father’s main argument is that [Mark] is expressing a view that he wishes to spend more time with his Father and given [Mark]’s age and intelligence, the Court should take those views into account. He also says that it is some 4 years now since the original orders were made.
Dr [A] spoke to [Mark], as I referred to, in paragraph 24 of his report, Dr [A] states:
I asked [Mark] who he lives with, and he says he lives with “mum and dad'” and that “my parents have separated”. The significance of this is that he sees both parents in a relatively equal light. When I asked [Mark] what the living arrangements were, he was able to explain that in the first weekend he has 3 sleeps with this [sic] Father and sometimes 4 (long weekends), and that he has 6 nights in the holidays. He considers this arrangement “good'”.
Further, at paragraph 28 Dr [A] stated:
When I discussed how he liked the current arrangement, he indicated that he likes it “really good”. I asked how it would be if he had more time with his Father and he said “that’s good, it would be pretty good'”. He said that sometimes when he is with his Father he has such a good time that he does not want to leave. He indicated that this happens both ways, and that there are times he does not want to go to his Father’s house when he is having a good time with his Mother. I asked if he would like to have more sleeps at his Father’s house and he said he did not know. I asked if he would like more sleeps in the holidays and he said “I like it how it is now”.
I also refer to my earlier reference to paragraph 36 of Dr [A’s] report. In particular, Dr [A’s] comment that the Father “does not seem to understand that children like being in the moment and that just because [Mark] wants to be with him does not mean that he does not want to be with [the mother]”.
Whilst Dr [A] indicates that there are some issues that may need to be considered, in the future, [Mark]’s schooling for example, there is nothing in my view in his report that indicates that there has been a significant change in circumstance that requires the Court to, at the present time, review the arrangements for [Mark].
The child’s views are one of the additional considerations that the Court must have regard to pursuant to section 66C(3) of the [State] Act in determining what is in the child’s best interest.
The views of a seven year old would not be the sole determinant of what arrangements for the care of the child would be in the child’s best interest. Similarly, the passage of time would not of its own justify further litigation.
46Under a heading “Conclusion”, His Honour said:
I am not satisfied on the evidence before me that the Father has established that there is a prima face case of changed circumstances that would justify the re-litigation of the parenting issues in relation to [Mark].
I am not satisfied that the passage of time since the original trial nor [Mark]’s current age and views by themselves, or taken together, amount to a significant or substantial change in circumstances that would leave the Court in no doubt that it was necessary to re-litigate [Mark]’s care arrangements.
Communication issues between the parties and disputes about medical issues, travel and passports, by themselves, or taken together, in the circumstances of this case, are not significant or substantial enough to warrant re-litigation of parenting orders.
47His Honour went on to dismiss all outstanding applications, including the mother’s application for the father to be declared a vexatious litigant.
Is the Magistrate’s decision attended by sufficient doubt?
48Counsel for the father relied on the principles set out in the extract below from the decision of the Full Court of the Family Court of Australia in Marsden v Winch (2009) 42 Fam LR 1, dealing with the rule in Rice and Asplund (footnote omitted):
48.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.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice 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.
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and 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.
49These principles were relied upon by counsel for the father in seeking to support the proposed grounds of appeal relating to the adequacy of the Magistrate’s reasons. Counsel especially emphasised the word “must” that I have highlighted in paragraph 50 in the above extract.
50Although observations made by an appellate court should not be treated as if they are the words of a statute, I respectfully agree with the Full Court that in cases where Rice and Asplund is sought to be invoked, the reasons for the earlier decision should be considered. However, save for mentioning Magistrate Moroni’s statement that Mark’s views would carry greater weight as he matured, Magistrate Calverley failed to refer to any of the reasons given for the making of the 2013 orders, nor did his Honour make any reference to what was said by Magistrate Moroni in giving his decision in 2015.
51In my opinion, this was a serious deficiency in the reasons, especially as my reading of the transcript satisfies me that the father’s case was not as focused on Mark’s wishes as his Honour’s reasons would suggest. A significant proportion of the father’s submissions to his Honour were in fact focused on parental responsibility and what he claimed was the impracticability of the order for shared parental responsibility. The same arguments were advanced as being relevant to a change in time sharing arrangements, quite apart from views Mark might have expressed.
52Given the thrust of the father’s argument, I consider his Honour should have had regard to Magistrate Moroni’s statement in 2013 “that it ought not to be assumed that the intention of the Court is that the orders which will take effect as from the beginning of the 2015 school year should operate for the balance of the child’s minority” and that “it is certainly possible that in a couple of years time the prevailing circumstances might be such as to mandate a review of the arrangements ...”.
53The Magistrate also did not refer to the reasons Magistrate Moroni gave for not being prepared to do more than “fine-tune” the orders in 2015, although these were cited and emphasised by the father in his submissions. Accordingly, there was no consideration of what might have been seen as Magistrate Moroni’s invitation to the parties to file a new application to deal, inter alia, with the “very important” issues raised about parental responsibility. What may be perceived as an invitation by the Magistrate with the conduct of the matter to bring a fresh application should not have been overlooked.
54More importantly, Magistrate Moroni recognised in his 2015 reasons that the hopes or expectations he had entertained in 2013 concerning the parties’ ability to develop a relationship that would support the continuation of the equal shared parental responsibility order had not been realised. This was the very basis upon which the order for equal shared parental responsibility had been made in the first place and it is therefore unsurprising that Magistrate Moroni was so sanguine about the possibility of a further substantive application being made.
55While Magistrate Moroni was not prepared in 2015 to “make any orders which qualify or vary” the order for equal shared parental responsibility, his Honour was not suggesting that the issue was closed. On my reading of his judgment, his Honour was simply not willing to deal with the topic, on which a “final” order had been made, at a “shortcut” hearing conducted on the papers.
56Although Magistrate Calverley found that “communication issues between the parties and disputes about medical issues, travel and passports, by themselves, or taken together, in the circumstances of this case, are not significant or substantial enough to warrant re-litigation of parenting orders”, his Honour did not discuss the benefit to Mark of there being a full hearing at which orders might be made that may limit such disputes in the future.
57There was at least potential for ongoing disputation about issues concerning health and education to be resolved by giving one parent responsibility for such issues. However, there was no discussion of the likelihood at a new hearing of the orders being varied in this way, which the Full Court has said must be taken into account. In the present matter, there has to be a real prospect that the Court would discharge the parental responsibility order given the parties’ inability to come to agreements, as evidenced by the dispute concerning Mark’s operation.
58The father’s case about the probability of there being ongoing litigation on an issue-by-issue basis was corroborated by the following paragraph of Dr A’s report to which his Honour did not refer:
These parents cannot easily agree on anything from having an [operation], to the child’s recreational activities … It seems to me that each of these big issues is going to have to be thrashed out in Court, because they are not likely to go away.
59His Honour did not consider the impact on Mark and the parents of having to come back to Court on multiple occasions to deal with parental responsibility issues. Instead, his Honour seemed willing to countenance the fact that “there are issues that arise from time to time along with issues such as schooling, which would generally be determined as discrete issues as and when they arise”.
60Although the Magistrate was prepared to allow the mother to reframe her case in her oral submissions in response to the father’s submissions, I consider that it was of significance that the mother herself seemingly acknowledged that it would be desirable for the order for equal shared parental responsibility to be revisited. His Honour did not address this fact and instead referred to the mother’s claim for sole parental responsibility only in very oblique terms.
61I accept no submissions were made to the Magistrate about the likelihood of a court varying the time sharing regime based upon Dr A’s opinion that “there will be a time in the near future where longer blocks will work better for [Mark] rather than the frequent changes”. However, the parties were not to know that the Magistrate would not deliver his decision for more than six months. Given there would be further delay before a full hearing, I consider that the Magistrate ought to have taken into account the delay of more than 14 months since Dr A opined about the desirability “in the near future” of replacing the three fortnightly visits with “longer blocks”. Dismissal of the father’s application prevented the Court, at least for some time, from being able to consider the amalgamation of the overnight visits into two or perhaps one block, thus reducing the continual movement for Mark.
62His Honour’s reasons also do not show an appreciation of the fact that some of the issues the father wished to raise were not by way of variation of existing orders at all, but rather were new issues that had not been considered when the 2013 orders were made. Included in this category are the orders the father sought relating to travel and Mark’s passport. The father pointed out in his submissions to the Magistrate that the issue concerning a passport should be resolved now that Mark has reached an age where it is arguably realistic for him to travel overseas with the father (transcript, 25 November 2016, p 12 and 19).
63The matters to which I have referred satisfy me that the correctness of his Honour’s decision is attended by sufficient doubt to justify the granting of leave to appeal.
Would there be substantial injustice if leave to appeal is not granted?
64I am satisfied there would be a substantial injustice if leave is not granted. Although the father is not precluded from making another application, the reality is that if he applies in the short to medium term he is likely to be met with another application for dismissal without a merits hearing.
65Given the matters to which I have referred above, denial of a hearing on the merits when the case concerns a child who is now already three years older than he was when the father commenced the current round of litigation would be a substantial injustice to the father (and to the child as well).
The outcome and costs
66Leave to appeal will be granted.
67For the reasons already stated, the appeal itself will be allowed on the basis of Ground 1 which challenged the adequacy of his Honour’s reasons. In the circumstances, it is unnecessary to discuss the balance of the grounds of appeal. In the re-exercise of the discretion, I would dismiss the mother’s application seeking dismissal of the father’s application since I consider that Mark’s best interests require, inter alia:
·a reconsideration of the issue of parental responsibility;
·consideration of a variation in the regime which has a nine year old boy changing residence three times every fortnight; and
·determination of the issue about the terms on which Mark can travel interstate and overseas, including the issue of a passport.
68As discussed at the hearing, the appropriate order in these circumstances is for the matter to be remitted to the court below to be listed before a Magistrate for directions to program the matter to trial.
69I took costs submissions at the hearing. I do not propose to make an order for costs given the appeal has been allowed on the basis of the insufficiency of the Magistrate’s reasons. The mother did not contribute to this error, nor was it unreasonable for her to seek to maintain the decision on appeal.
Application in an appeal
70The application in an appeal filed 20 February 2018 was ultimately not pursued after some exploration of the issue at the hearing.
Orders
71For the reasons above, I make the following orders:
1. Leave to appeal be granted.
2. The appeal be allowed.
3. Orders 4, 5, 6 and 7 made by Magistrate Calverley on 2 June 2017 be set aside.
4. The mother’s application filed on 10 June 2016 be dismissed.
5. The matter be remitted to the Magistrates Court of Western Australia to be listed for a directions hearing to program the matter to trial.
6. The Application in an Appeal filed 20 February 2018 be dismissed.
7. There be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
ASSOCIATE5 JULY 2018
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