MERLA & MERLA
[2018] FamCAFC 101
•30 May 2018
FAMILY COURT OF AUSTRALIA
| MERLA & MERLA | [2018] FamCAFC 101 |
| FAMILY LAW – APPEAL – CHILDREN – Schooling – Where the primary judge made interim orders changing the schools the children were to attend – Where the child the subject of the orders under appeal was resistant to changing schools – Weight given to child’s views – Where there was evidence that the order for the change of schools was having a detrimental impact on the child’s mental health – Whether the primary judge erred by failing to find that there were changed circumstances for the purposes of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) – Error demonstrated – Appeal allowed – Matter remitted to the Federal Circuit Court of Australia for rehearing – Costs certificates issued in accordance with the Federal Proceedings (Costs) Act 1981 (Cth). FAMILY LAW – APPEAL – EVIDENCE – Refusal to admit – Where the father tendered a bundle of medical reports about the child’s mental health status – Where the primary judge refused to admit the evidence on the basis that one of the reports was unsigned – Discussion of principles in ss 69ZN and 69ZT of the Family Law Act 1975 (Cth) – Where the documents were relevant to the Rice and Asplund issue and should have been admitted – Error demonstrated – Appeal allowed. |
| Evidence Act 1995 (Cth) s 69 Family Law Act 1975 (Cth) ss 60CC, 69ZN, 69ZT Federal Proceedings (Costs) Act 1981 (Cth) |
| Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 |
| APPELLANT: | Mr Merla |
| RESPONDENT: | Ms Merla |
| FILE NUMBER: | PAC | 5685 | of | 2017 |
| APPEAL NUMBER: | EA | 46 | of | 2018 |
| EA | 47 | of | 2018 |
| DATE DELIVERED: | 30 May 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Pascoe CJ, Aldridge & Stevenson JJ |
| HEARING DATE: | 16 May 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 March 2018 14 March 2018 |
| LOWER COURT MNC: | [2018] FCCA 512 [2018] FCCA 831 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Gardiner |
| SOLICITOR FOR THE APPELLANT: | Coleman Greig Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Lawson |
| SOLICITOR FOR THE RESPONDENT: | Kent Attorneys |
Orders
Appeal EA 46 of 2018 is dismissed.
Appeal EA 47 of 2018 is allowed.
The order dismissing the father’s Application in a Case filed on 13 March 2018 is set aside.
The matter is remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Newbrun.
There be no order as to costs.
The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merla & Merla has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA46 of 2018; EA47 of 2018
File Number: PAC 5685 of 2017
| Mr Merla |
Appellant
And
| Ms Merla |
Respondent
REASONS FOR JUDGMENT
The proceedings
This appeal concerns interim parenting orders made by Judge Newbrun in the Federal Circuit Court of Australia on 5 March 2018 and 14 March 2018.
The first Notice of Appeal filed on 26 March 2018 by the appellant father, Mr Merla (“the father”), concerned orders 3 and 7(a) made on 5 March 2018. These orders were as follows:
3.The children shall, during school term times, spend time with the father, on a fortnightly basis, from the conclusion of school (or otherwise 3 PM) Thursday until the commencement of school (or otherwise 9 AM) Monday, such time commencing on Thursday, 15 March 2018.
…
7.The parties shall forthwith do all things necessary to ensure that the children attend school as follows:
(a)[W] at [Suburb B] High School;
…
The second Notice of Appeal filed by the father on 26 March 2018 concerned an order made on 14 March 2018, which dismissed the father’s Application in a Case of 13 March 2018. This Application in a Case sought the following orders:
1.That this Application be dealt with on an urgent basis.
2.That Order 3 of the Orders made 5 March 2018 be suspended insofar as it relates to the child [W Merla] born … 2003 (“[W]”).
3.That pending further Order [W], shall live with the father and spend time with the mother from 5pm Friday until 5pm Sunday on each alternate weekend commencing 23 March 2018 with the mother to collect [W] from the father’s residence at the commencement of such time on the Friday and deliver [W] to the father’s residence at the conclusion of such time on the Sunday.
4.That Order 7(a) of the Orders made 5 March 2018 be suspended and each shall forthwith do all things necessary to enrol [W] at [Suburb N] High School, pending further Order.
5.That each party shall do all things so as to ensure that [W] attends all scheduled medical appointments including any appointment with his treating psychologist.
The respondent mother, Ms Merla (“the mother”), opposed the father’s appeal.
Background
The parties began to live together in 1998 and married in late 2000. They separated under one roof in August 2016 and in September 2017 the mother and the parties’ children left the former matrimonial home at Suburb P. They moved into rented accommodation at Suburb D with the maternal grandparents.
The parties are the parents of four children:
·W born in 2003 (aged 14 years);
·X born in 2005 (aged 12 years);
·Y born in 2009 (aged 8 years); and
·Z born in 2012 (aged 6 years).
In September 2017 the father moved into rented premises at Suburb N, a suburb close to Suburb P.
W, the child the subject of the orders under appeal, commenced his secondary education at Suburb N High School and was a Year 9 student at the beginning of 2018.
The closest secondary school to Suburb D is Suburb B High School. Suburb N High School is some distance from Suburb D. The mother’s evidence was that she was not in a position to drive W to Suburb N from Suburb D. The evidence was that travel by bus would take about one and a half hours and would require one or two changes of bus.
On 29 January 2018 the primary judge ordered that W attend Suburb N High School and that the parties’ other children, X, Y and Z, attend Suburb B High School and Suburb B Public School pending an interim hearing set to take place approximately four weeks later. On 5 March 2018 his Honour ordered that W and X attend Suburb B High School and that Y and Z be enrolled at Suburb B Public School.
In his reasons for judgment of 14 March 2018 at [15] the primary judge referred to W’s “oppositional behaviour” since the interim orders of 5 March 2018 were made providing for him to attend Suburb B High School instead of Suburb N High School.
W was to commence attending Suburb B High School on 8 March 2018. In his affidavit of 13 March 2018 the father deposed that W came to his home after school on 7 March 2018 and before school on 9 March 2018, on each occasion expressing his resistance to changing schools. The father also deposed that W went to Suburb N High School on 8 March 2018, after the father had delivered him to Suburb B High School on that morning.
The Grounds of Appeal
The father’s Summary of Argument set out the three grounds of appeal in respect of both Notices of Appeal as follows:
2.In the consolidated appeals there are 3 grounds of appeal. They are:
2.1that in respect to the judgments of 5 March 2018 and 14 March his Honour erred in failing to give proper, genuine and realistic consideration of the views of [W];
2.2that in respect to the judgment of 14 March 2018 his Honour erred in failing to admit into evidence the medical report of Dr [H]; and
2.3that in respect to the judgment of 14 March 2018 his Honour erred in dismissing the application to suspend Order 7(a) made on 5 March 2018 in respect to the child [W].
Did the primary judge fail to give proper, genuine and realistic consideration to the views of W? (Ground 1)
In his reasons for judgment of 5 March 2018 the primary judge referred to statements made by W to the Family Consultant in a Child Inclusive Conference on 22 February 2018. His Honour said:
54.The child [W] (Year 9 in 2018) told the family consultant that he wishes to remain at his current school, [Suburb N] High School, as his friends are there, and the school has been supportive of his anxiety. He stated that it is easy for him to get there from the father’s house, but not the mother’s house. He stated that he believes he can sustain the travel necessary to get to his present high school each day, and if this becomes too difficult he can stay with his father more.
55.[W] told the family consultant that he would like to spend more time with the father, in order to avoid catching so many buses, and also to “hang out” more with the father. In this context, the father in his last Affidavit asserts that this child told the father recently that he wants to live with the father every Monday and Tuesday so that he doesn’t have to travel from the mother’s home to school. The Court would interpolate at this point that it would not be in the best interests of the children, including [W], that [W] be separated from his siblings through spending more time with the father compared to the other children.
(Original emphasis)
His Honour weighed W’s stated views against other considerations set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) and reached these conclusions:
64.Whilst the court takes into account [W]’s expressed views in relation to wishing to remain at his present school, in the view of the Court, at this interim stage, his views are outweighed, in particular, by the impracticalities of travelling by significant time-consuming public transport to and from the mother’s residence at [Suburb D] to his present school, with quite arguable resultant adverse impacts upon his schooling and extracurricular life. In this context, the court should state that it proposes (see the discussion below) to accede to the mother’s proposals that the children primarily live with her and spend time with the father from after school Thursday to before school Monday on a fortnightly basis, during school term times.
It seems to us that his Honour gave proper consideration to W’s stated views and reached a conclusion as to what orders would be in his best interests after weighing that matter against other relevant considerations set out in s 60CC of the Act. It may be that other judges would have reached a different conclusion, but it is our view that the father cannot succeed on this ground of appeal.
We will deal with the reasons of 14 March 2018 under ground 3.
Did the primary judge err by refusing to admit medical reports into evidence? (Ground 2)
On 14 March 2018 counsel for the father attempted unsuccessfully to tender documents from the Suburb E Medical Centre. In an affidavit of 13 March 2018 the father deposed as follows:
28.On 9 March 2018 I took [W] to see his regular general practitioner [Dr H] from [Suburb E Medical Centre] (“[Dr H]”). I informed [the mother] of that appointment in the text message I sent on 9 March 2018 (also deposed at paragraph 23 above) saying “I took [W] to the doctor today and am sharing the paperwork with you […] you can contact me over the weekend if you wish to discuss the matter further”.
29.[Dr H] completed a mental health plan for [W] during that appointment, and referred [W] to a treating psychologist that [W] had attended upon previously, namely, [Dr J]. Copies of that mental health plan and referral can be tendered on request.
30.[W] has his first appointment with [Dr J] on Thursday 29 April 2018 at 5.00pm.
His Honour declined to admit these documents into evidence and stated, “I reject the tender because it’s unsigned” (Transcript 14 March 2018, p.17).
The first document from Suburb E Medical Centre was a report dated 9 March 2018 which was not signed by its author. The second document was a letter dated 9 March 2018, which referred W to Dr J, a psychologist, “with regard to his worsening anxiety symptoms”. These two documents were written on stationery with the letterhead “[Suburb E] Medical Centre”. The third document was a mental health plan dated 9 March 2018 which listed the patient’s name as “Mast [W Merla]” and the general practitioner as “[Dr H]”. The last document was a questionnaire dated 9 March 2018, which also contained the names “Mast [W Merla]” and “General Practitioner: [Dr H]”.
Counsel for the father attempted to tender “medical reports from [Suburb E] Medical Centre”. Thus, the tender was of the bundle of documents and not just the report. The legal representative for the mother objected to the tender of “that report” on the basis that “[i]t’s unsigned and it doesn’t even have the name of the doctor who he saw” (Transcript 14 March 2018, p.16). His Honour rejected the whole of these documents, on the basis that the first page was unsigned by the author.
The hearing on 14 March 2018 was conducted pursuant to Division 12A of Part VII of the Act. This Division includes s 69ZN, which sets out five “principles for conducting child-related proceedings”. Principle five is relevant for present purposes and reads as follows:
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Counsel for the father informed his Honour on 14 March 2018 that a signed copy of this document existed but was not at that time available within the court precincts (Transcript 14 March 2018, p.16). The proceedings would have been delayed if the signed document was produced to the court.
Section 69ZT(1) of the Act provides that certain provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) do not apply to child-related proceedings. Section 69ZT(2) provides that a court may give such weight, if any, as it thinks fit to evidence which is admitted as a consequence of non-application of a provision of the Evidence Act. Section 69ZT(3) empowers the court to make an order that provisions of the Evidence Act will apply in certain circumstances.
No order had been made pursuant to s 69ZT(3) of the Act on 14 March 2018. Accordingly, the documents from Suburb E Medical Centre could and should have been admitted and accorded such weight, if any, as the court deemed fit.
The documents from Suburb E Medical Centre were in evidence before us as Exhibit A1, as we considered that it was necessary for us to read this material to rule on this ground of appeal. Counsel for the mother submitted that there was “nothing new” in this material, as his Honour was well apprised of W’s history of anxiety.
On examination, however, the documents from Suburb E Medical Centre could be considered to contain new material in relation to W’s well-being since the orders of 5 March 2018. For example, the report dated 9 March 2018 relevantly stated:
[W] came in for review today. He has had worsening anxiety symptoms in recent weeks triggered by stressors around his family disputes and the change of schools against his wishes.
This report stated further:
In recent times, the significant stress with ongoing legal dispute between his parents has caused a recurrence of his anxiety disorder. The recent court order which has resulted in [W] spending most of the time with his mother and the associated change of schools from [Suburb N] to [Suburb B] appears to have brought things to a head for him. [W] reports being very happy with [Suburb N] high school and had a good network of supportive friends there. He has been opposed to this change of high school and this has led to numerous arguments with his mum.
The report stated also:
It appears that [W]’s anxiety symptoms would markedly improve if he was able to remain at his previous high school where he has an established support network and is markedly less stressful than the unfamiliar environment of a new high school. Additionally, he would benefit from having more time with his father away from the stress he has been feeling when staying with his mother. I have also referred him back for treatment with his psychologist to assist his symptoms.
We conclude that this material was potentially relevant to whether there was a change of circumstances sufficient to warrant a reconsideration of what orders are in the best interests of W. It is our view that these documents were admissible in the context of proceedings conducted pursuant to Part VII, Division 12A of the Act. Accordingly, the father will succeed on this ground of appeal.
In any event, all of the documents, with the exception of the first page, were admissible under s 69 of the Evidence Act as business records.
Did the primary judge err by dismissing the father’s application to suspend the order requiring W to attend Suburb B High School? (Ground 3)
On 14 March 2018 the primary judge held as follows:
13.On the material presently before the Court, the Court is presented with a fourteen and a half year old child, who is expressing opposition to attending the [Suburb B] High School. Taking the father’s case at its highest (noting the mother’s material presently before the court, that she had not noticed significant symptomatology in the child, such as eating problems and the like), in the view of the Court, there is presently insufficient evidence before it to conclude that there has been a material change in circumstances, such as to justify the court suspending or varying its Orders of 5 March last, as sought by the father, in the current Application in a Case. In this context, the court has had regard to the relevant legal principle, relating to the rule in Rice & Asplund.
…
15.Again, the Court is of the view that there has been no relevant material change in circumstances, pursuant to the rule in Rice and Asplund and the authorities just referred to, and the relevant legal principle relating to the rule in Rice & Asplund. It is not without relevance that there is presently no significant psychological evidence before the Court, and, in the view of the Court, the child’s arguable oppositional behaviour, including going to live with the father and refusing to attend the high school, is not sufficiently compelling to justify the court in finding that there has been a material change in circumstances …
In our view a number of exchanges that took place on 14 March 2018 between the primary judge and counsel for the father suggest that his Honour focussed on the alleged conduct of the father in failing actively to promote the orders of 5 March 2018, rather than upon a determination of whether there had been a change of circumstances which was sufficient to warrant a reconsideration of what orders were in the best interests of W. The following passages of the transcript, in our view, illustrate this focus on the part of the Court:
HIS HONOUR: - - - 5 March and he tells the child, “Not that the court has made an order that you attend”, but he says, “We have agreed”. That’s just misleading, isn’t it.
MR GARDINER: What’s better for a child to hear, that. “Your mum and dad have had a stand-up row about it and the judge has had to make a decision”, or “There’s some agreement here and we have to go.”
HIS HONOUR: No. The parties – it could have been said, for example, to the child, “Your mother and I each put our own separate distinct arguments to the court at a contested interim hearing.”
MR GARDINER: Right.
HIS HONOUR: The court was to make a decision. The court has made a decision, but, no, his misleads the child and says, “The mother and I have agreed for you to attend [Suburb B] High School.”
MR GARDINER: Well - - -
HIS HONOUR: Now, that’s just misleading. The court had made an order earlier that day.
…
HIS HONOUR: Well, is that proper conduct in the circumstances where the court has made a solemn order back on 5 March, knowing that the child is apparently oppositional, to just drop him at the gate at 8.05 am? You tell me. Is that conduct facilitating supporting the implementation of the court’s order?
…
HIS HONOUR: … the father says to the child:
It’s important you give this school a chance, [W].
I mean, is that facilitating the court’s order, just saying “give it a chance”? It’s a court order.
…
My preliminary view – I will hear what you want to say in reply to Mr Gardiner’s submissions – is that there’s arguable – there’s a significant suggestion on the evidence presently before me that this father hasn’t facilitated the court’s order of 5 March last that the child attend the [Suburb B] High School, and in oral discussion with Mr Gardiner I’ve already alluded to some arguable – to the significant suggestion that that has occurred. …
If the court is wrong in stating that there is a significant suggestion that the father hasn’t been proactive in seeking to facilitate the court’s order that the child attend the [Suburb B] High School, the court’s preliminary view is that there’s just not enough evidence presently to indicate there is a material change in circumstances, because all we’re faced with is a boy who is oppositional to attending upon this new school. He’s, on the father’s case, expressing these – or expressing these symptoms. …
(Transcript 14 March 2018, pp.9, 10, 11 and 18)
Early in the reasons, his Honour said:
4.In the view of the Court, there is a significant suggestion, on the material presently before it, that the father has not proactively sought to facilitate the Court’s Order of 5 March 2018, that the child attend the [Suburb B] High School …
The primary judge then referred to the conversations referred to in the transcript we have quoted, and to a conversation between W and the mother. Then, at [11], his Honour repeated the finding made at [4].
In our view, the reality is that on 14 March 2018 the Court devoted considerable focus to the alleged conduct of the father in failing actively to promote and facilitate the orders of 5 March 2018, at the expense of a proper consideration of the issue of a change of circumstances for the purposes of Rice and Asplund (1979) FLC 90-725.
We are satisfied that there is merit in this ground of appeal.
Conclusion
The appeal against the order made by the primary judge on 14 March 2018 will be allowed.
It was common ground between the parties that in the event the appeal was allowed, the matter would need to be remitted for rehearing. An order will be made remitting the matter to the Federal Circuit Court of Australia to be heard by a judge other than the primary judge.
Costs
The father did not seek a costs order in the event that the appeal was successful. We agree that the appropriate order is that there be no order as to costs.
We are of the view it is appropriate to issue certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and any rehearing.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Pascoe CJ, Aldridge & Stevenson JJ) delivered on 30 May 2018.
Legal associate:
Date: 30 May 2018
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