Melounis & Melounis (No 4)

Case [2024] FedCFamC1F 778

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Melounis & Melounis (No 4) [2024] FedCFamC1F 778

File number(s): SYC 7199 of 2019
Judgment of: ALTOBELLI J
Date of judgment: 15 November 2024
Catchwords:

FAMILY LAW – PARENTING – Where the mother asks the Court to reconsider final parenting orders under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) – Where the father and Independent Children’s Lawyer oppose this – Where the father proposes minor variations to the final parenting orders – Where the mother and the Independent Children’s Lawyer oppose this – Where the Court determines that minor variations to final parenting orders are governed by s 65DAAA of the Act – Where the Court determines that a significant change of circumstances has occurred since the final parenting orders – Where the Court considers the impact of recent amendments on s 60CC of the Act – Where the Court considers the meaning of “to promote the safety of a child and their carer” – Where the Court determines that the best interests of the children require a reconsideration of the final parenting orders – Where the Court allows the mother’s s 65DAAA application – Where the Court orders the appointment of a single joint expert.

FAMILY LAW – PROCEDURE – Where the Court considers various procedural aspects of s 65DAAA proceedings – Where the Court determines that specific parenting orders are permissible without reconsideration under s 65DAAA where the nature and content of the specific parenting orders were not covered by the “final parenting orders” – Where the Court determines that s 65DAAA proceedings should be heard as initial threshold proceedings.

FAMILY LAW – EVIDENCE – Section 117C of the Act – Section 131 of the Evidence Act 1995 (Cth) (“the Evidence Act”) – Where the solicitor for the father seeks to adduce correspondence from the mother’s legal representative – Where the mother’s counsel objects to the production of the letter due to it being headed “without prejudice” – Where the correspondence was produced following the delivery of the final parenting orders – Where the Court determines that the mother was not intending to appeal the final parenting orders – Where the Court determines that the correspondence was not an offer as no proceedings were on foot – Where the Court allows the production of the letter.

FAMILY LAW – EVIDENCE – Section 117C of the Act – Section 131 of the Evidence Act – Where the solicitor for the father seeks to adduce letters to the mother’s legal representative containing offers to settle – Where the mother’s counsel objects to the production of the offers on the basis the offers were made without prejudice (r 4.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) – Where the content of the offers directly relates to the current dispute and where proceedings are still on foot – Where the Court declines to admit the letters into evidence.
Legislation:

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AGLC
Melounis & Melounis (No 4) [2024] FedCFamC1F 778
Case
[2024] FedCFamC1F 778
Decision Date

CaseChat Overview and Summary

The case of Melounis & Melounis (No 4) involves a dispute between X and Y, two children, and their parents, the mother and the father. The mother sought to completely reconsider the final parenting orders made by Judge Morley on 24 May 2022, while the father and the Independent Children’s Lawyer opposed this application. The father also proposed minor variations to the final parenting orders, which the mother and the Independent Children’s Lawyer opposed. The Court had to decide whether to allow the reconsideration of the final parenting orders under s 65DAAA of the Family Law Act 1975 (Cth), and whether there had been a significant change of circumstances since the final orders were made. The Court also had to consider various procedural and evidentiary issues, such as the admissibility of certain correspondence and settlement offers.

The Court found that minor variations to final parenting orders are indeed governed by s 65DAAA of the Act, and that a significant change of circumstances had occurred since the final orders were made. The Court considered the impact of recent amendments on s 60CC of the Act, and the meaning of “to promote the safety of a child and their carer”. The Court determined that the best interests of the children required a reconsideration of the final parenting orders, and allowed the mother’s s 65DAAA application. The Court also ordered the appointment of a single joint expert to prepare a report on the children’s needs and welfare.

The Court further considered various procedural aspects of s 65DAAA proceedings, and determined that specific parenting orders are permissible without reconsideration under s 65DAAA where the nature and content of the specific parenting orders were not covered by the “final parenting orders”. The Court also decided that s 65DAAA proceedings should be heard as initial threshold proceedings. The Court dealt with several evidentiary issues, including the admissibility of correspondence and settlement offers made during the course of the proceedings. The Court allowed the production of a letter from the mother’s solicitors to the father’s solicitors, which contained an offer to settle the matter in terms different to the final orders, on the basis that the mother was not intending to appeal the final orders and that no proceedings were on foot at the time of the offer. The Court declined to admit into evidence letters to the mother’s legal representative containing offers to settle, on the basis that the offers were made without prejudice and that the content of the offers directly related to the current dispute and proceedings that were still on foot.

In conclusion, the Court allowed the mother’s application to reconsider the final parenting orders, and ordered the parties to obtain a single expert report. The Court also made several procedural and evidentiary rulings, and listed the matter for mention on a future date.

Orders

Orders of the court

SYC 7199 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MELOUNIS

Applicant

AND:

MR MELOUNIS

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

15 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The matter is listed for mention on 6 December 2024 at 9:30 am.

Amended Initiating Application filed 23 April 2024

2. The Applicant has leave, pursuant to s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”), to proceed with the parenting orders contained in her Amended Initiating Application filed 23 April 2024.

Extant Applications

3. All applications, save for the Applicant’s Amended Initiating Application filed 23 April 2024 and the Respondent’s Further Amended Response to Initiating Application filed 4 September 2024, are dismissed.

Family Report

4. Within 14 days from the date of these orders, the Applicant is to provide the Respondent with the name, cost, availability and resume of three suitable single experts.

5. Within seven days thereafter, the Respondent shall nominate one suggested single expert to be appointed for the purpose of preparing a single expert report in conformance with ch 7 of the Act.

6. Within seven days of the Respondent’s nomination, the Independent Children’s Lawyer shall provide a proposed joint letter of instruction to the single expert for the parties’ comment.

7. Within seven days of receiving the Independent Children’s Lawyer’s proposed letter of instruction, the parties are to propose any amendments to the letter of instruction.

8. The cost of the single expert report is, at first instance, to be paid from the net proceeds of sale of the former matrimonial home held in the Controlled Monies Account of the Applicant’s legal representative.

9. In the event that there is any disagreement as to the joint letter of instruction to the single expert, the Independent Children’s Lawyer is at liberty to relist the matter on seven days’ notice, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:

(a) Forthwith notify all other parties of the intention to make the request and the reason for same;

(b) Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and

(c) Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

This case is about X (“X”) and Y (“Y”) (“the children”) who are ten and eight years old respectively. The Court must decide whether to allow their mother (“the mother”) and their father (“the father”) (“the parents”) to relitigate important issues relating to their care. The mother seeks to completely reconsider the orders of Judge Morley (“the original judge”) dated 24 May 2022 (“the final orders”). These reasons for judgment will explain why the Court has allowed the mother’s application and will require the parties to obtain a single expert report.BACKGROUND The mother is 41 years old and has not disclosed her occupation to the Court. The father is 48 years old and is both employed as a business manager and self-employed as a company director. The mother asserts that the parents commenced their relationship in 2006, whilst the father asserts that the parents began their relationship in 2008. The parents commenced cohabitation in 2008 and were married in 2010. The father contends that the parents separated on 8 September 2018, whilst the mother contends that final separation occurred on 17 October 2019.Litigation history This matter has a substantial litigation history. Over 30 interlocutory orders were made prior to the final orders and many more since then. By virtue of the length and complexity of these proceedings, these reasons for judgment will only traverse materially relevant orders and determinations. The matter first came before the original judge on 25 November 2019. On 3 April 2020, his Honour made interim parenting orders providing for equal shared parental responsibility, for the children to live with the father, and for the children to spend five nights per fortnight with the mother. On 17 July 2020, the original judge vacated a further interim hearing and consent minutes were made in chambers standing over all remaining parenting and property applications to the final hearing and facilitating an interim property settlement between the parents. His Honour set the matter down for a three-day final hearing commencing 14 September 2020. The final hearing proceeded on 14 September 2020, however it was unable to conclude within the three allocated days. The matter went part-heard and was further listed on 18 September, 6 November and 12 November 2020. On 14 December 2020, his Honour made orders in chambers reserving the final judgment after written closing submissions were received. The original judge made the final orders and delivered reasons for judgment on 24 May 2022. In the intervening period prior to the final orders being delivered, the father filed his first of three contravention applications on 28 January 2022. This was dismissed by Senior Judicial Registrar Conlan on 16 June 2022 following receipt of the final orders. Shortly thereafter, the father filed an Application in a Proceeding on 21 June 2022 seeking indemnity costs in his favour arising from the Application in a Case filed by the mother on 14 May 2021. On 28 June 2022, the mother filed an urgent Application in a Proceeding in which she sought ex parte enforcement orders regarding the sale of F Street, Suburb D (“the former matrimonial home”). The mother’s application was granted by the original judge on 6 July 2022. On 29 November 2022, the original judge dismissed the mother’s Application in a Case filed 14 May 2021, ordered her to pay the father’s costs in the sum of $12,000, and ordered that the matter be transferred to Division 1.

Evidence

Evidence Before The Court

It is appropriate to apply the collective judicial knowledge embodied in the decisions considering Rice and Asplund principles to new matters under s 65DAAA but only if it does not limit, expand or otherwise conflict with the text of the new provision. To do otherwise would be to apply “a gloss of pre-existing law to a new and specific statutory provision” (Whitehill & Talaska [2024] FedCFamC2F 768 at [26] (“Whitehill & Talaska”)).PRELIMINARY RULINGS ON OBJECTIONS TO EVIDENCE Counsel for the mother objected to the reading of paragraph 10 and Annexure B of the father’s affidavit filed 18 September 2024. This material refers to a letter dated 31 May 2022 from the mother’s solicitors to the father’s solicitors containing an offer to settle the matter in terms different to the final orders. The basis of the objection is that the letter is marked “Without Prejudice”. The Court notes at the outset that r 4.07(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) states:4.07 Open and without prejudice offers…(2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:(a) in any document filed; or (b) at a hearing or trial. Similarly, s 117C(2) of the Act states:117C Offers of settlement(2) If:(a) a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and(b) the offer is made in accordance with any applicable Rules of Court;the terms of the offer must not be disclosed to the court in which the proceedings are being heard except for the purposes of the consideration by the court of whether it should make an order as to costs under subsection 117(2) and the terms of any such order. The solicitor for the father referred the Court to the Supreme Court of New South Wales decision in Dowling v Ultraceuticals Pty Ltd (2016) 93 NSWLR 155, where Hammerschlag J, as his Honour then was, relevantly stated:25Without prejudice privilege prevents admission into evidence of settlement negotiations between parties, when litigation between them is in contemplation. The privilege extends to protect without prejudice communications between parties to litigation from production to other parties in the same litigation. …35The extension of the privilege is squarely based on the policy underlying the privilege. Therefore, assessment of whether there is sufficient connection between two disputes, to justify extension of the privilege to the second, should be made by reference to whether or not the policy (which did or would have protected the documents from disclosure in the first dispute) will be served by extending the privilege to the second dispute in the particular circumstances of the case.36That policy, as the High Court said in Field, is to enable free communication without the embarrassment which the liability of a communication being put in evidence subsequently might impose on a party, or as Lord Griffiths articulated it in Rush & Tompkins, it would discourage settlement if a party believed that admissions might be held against it.37Accordingly, the court must assess whether the party resisting disclosure would have had a legitimate expectation that the material brought into existence for the purposes of settling the earlier dispute would not be used against it in the later dispute. 38Put another way, protection is given to induce lack of inhibition in making potentially damaging statements to facilitate dispute resolution. The policy protects those statements from disclosure in a later dispute if, fairly viewed, having regard to the subject matter of the later dispute, the party making them would be expected legitimately to have had the same inhibition.39Each case will of course turn on its own particular circumstances. There is no bright line. Ordinarily, however, one might assume such a legitimate expectation if the subject matter of the two disputes is exactly the same. Where the subject matter is not the same, the nature of the connection will need to be examined to determine whether the policy will be served by protecting disclosure.

Decision

Reasons for decision

The mother was not at fault for the enforcement litigation that arose regarding the sale of the former matrimonial home. The delay in the sale of the former matrimonial home clearly disadvantaged the mother and limited her financial means. A clear condition within the final orders was that the mother reside close to the children to facilitate equal time. The mother cannot currently afford to live in the area specifically prescribed by the original judge in the final orders. But for the additional costs of the enforcement litigation, the mother may have been able to afford living near the children. The deterioration of the mother’s financial circumstances has had the material effect of changing how the parents manage the day-to-day implementation of the final orders. I find that the deterioration in the mother’s financial position is a significant change of circumstances. Materialisation of the original judge’s conclusions A review of the events that have transpired since the final orders demonstrate that many predictions made by the original judge in Melounis were not realised. At [303] his Honour quoted, with obvious acceptance, the Family Report writer’s response that making a decision between a shared care arrangement and a primary care arrangement was a “Sophie’s Choice” situation. Such an order requires a high level of coparenting. His Honour stated at [362] that “the open conflict between the parents experienced and suffered by the children during the period leading up to separation in 2019 will not persist” (emphasis added). With the hindsight created by the passage of time, the prediction has not been realised, the open conflict continues, and the children remain exposed to it. His Honour based his optimism on evidence indicating:·The parents “have also shown that with the assistance of their solicitors and otherwise they have been able to negotiate and agree upon parenting arrangements outside of Court orders” ([374]);·“…the passing of time may have ameliorated their tendencies to open conflict and the causes thereof, and as is very often the case the cessation of these proceedings may go further toward that end” ([375]); and·“The evidence shows that these parents are capable of that communication and that they are both capable of giving their attention to what is best in the interests of the children on matters going to their children’s long-term care, welfare and development and so coming under the head of parental responsibility” ([376]). None of these matters have been sustained. The intractable parental conflict continues. His Honour proposed that the risk both parents posed to the children could be appropriately addressed ([331]) whilst acknowledging that: ·“This is a matter where the parents have shown that it was more than hard, it was impossible for them to avoid open conflict, even in the presence of the children, as their marital relationship broke down” ([374]); and·“The parents’ ability to communicate effectively face-to-face is in some doubt” ([375]).

Ratio Decidendi

Legal Principle Established

Section 65DAAA relevantly provides:65DAAA Reconsideration of final parenting orders(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered. (2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following: (a) the reasons for the final parenting order and the material on which it was based;(b) whether there is any material available that was not available to the court that made the final parenting order;(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order. (3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court. Section 65DAAA(1)(a) states that “a court must not reconsider the final parenting order unless the court has considered whether there has been a significant change of circumstances since the final parenting order was made” (emphasis added). There is no definition of the phrase “consider” in the Act (Tibb & Sheean (2018) 58 Fam LR 351 at [74]). The Full Court, referring to a definition in the Oxford English Dictionary (2nd ed, 1991) ‘consider’ (def 1) determined that consideration requires a trial judge to “contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of” (Goode and Goode (2006) FLC 93-286 at [60]; Tickner v Chapman (1995) 57 FCR 451 at 462). For the purposes of s 65DAAA, the Court must simply consider whether circumstances have significantly changed since the final parenting orders were made, but an actual significant change of circumstances is not a pre-requisite to allow a s 65DAAA application. At a minimum, a change of statutory emphasis has occurred from the prior common law principle. The weight afforded to any change of circumstance is varied, and necessarily based on the facts of the matter. The fundamental criteria that must be satisfied to allow a reconsideration of a final parenting order is that “the court is satisfied that, in all the circumstances…it is in the best interests of the child for the final parenting order to be reconsidered” (s 65DAAA(1)(b)). Other factors enunciated in s 65DAAA(2)(a)–(d) may inform the discharge of the statutory duty, especially if their evidentiary value outweighs the mere fact that significant change has not occurred.