Miller v Harrington
[2008] FamCAFC 150
•15 October 2008
FAMILY COURT OF AUSTRALIA
| MILLER & HARRINGTON | [2008] FamCAFC 150 |
| FAMILY LAW – APPEAL – FROM DECISION OF FAMILY COURT JUDGE – Rule in Rice v Asplund – Procedural Fairness – where there was confusion as to the nature of the proceedings – where disputed factual matters were considered in a summary way – where the Trial Judge considered matters outside the parameters of the application to dismiss pursuant to the rule in Rice v Asplund – where the mother had no proper opportunity to respond to the broader enquiry – Appeal allowed – Re-exercise of discretion – Analysis of the approach to the rule in Rice v Asplund –no material change in the circumstances of the children – central matters before the Trial Judges continue to pertain – in the bests interests of the children the litigation should not continue – on the re-exercise of discretion order in accordance with the Trial Judge – Appeal dismissed – parties to make written submissions as to costs |
| Family Law Act 1975 (Cth);s 65D(2); s 69ZM; s 69ZN(3); s 69ZN(5); s 69ZQ(1)(a); s 69ZQ(1)(g); s 69ZR(1); s 69ZR(2) |
| Allesch v Maunz (2000) 203 CLR 172 Bain Pacific Associations and Ors & Kelly & Ors (2006) FLC 93-270 Bigg v Suzi (1998) FLC 92-799 Collivas & Cassimatis [2007] FMCAFam 293 In the Marriage of Rice and Asplund (1979) FLC 90-725 King & Finneran (2001) FLC 93-079 L & L (1992) FLC 92-274 Newling and Mole (1987) FLC 91-856 Saad & Saad (1993) FLC 92-332 SPS and PLS (2008) FLC 93-363 |
| APPELLANT: | Ms Miller |
| RESPONDENT: | Mr Harrington |
| FILE NUMBER: | BRF | 6207 | of | 2000 |
| APPEAL NUMBER: | NA | 59 | of | 2007 |
| DATE DELIVERED: | 15 October 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, Boland and Murphy JJ |
| HEARING DATE: | 7 March 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 July 2007 |
| LOWER COURT MNC: | [2007] FamCA 1124 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page SC |
| SOLICITOR FOR THE APPELLANT: | Rees Law |
| COUNSEL FOR THE RESPONDENT: | Mr Forrest |
| SOLICITOR FOR THE RESPONDENT: | Murdoch Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Galloway |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Morrison Property and Family Lawyers |
Orders
The appeal against orders 1 and 2 of the Orders made by Barry J on 31 July, 2007 be dismissed;
That the appellant mother file any further submissions in respect of paragraph 3 of the said orders of Barry J in writing within 21 days of the date of our orders; the respondent father and Independent Children’s Lawyer file any such submissions within a further 21days after that and the appellant any submissions in reply within 7 days thereafter.
That each party endorse on the cover sheet of any submissions filed pursuant to Order 3, the date upon which a copy of that submission was served on the other party.
That a determination of the costs of the appeal await the further submissions contemplated by Order 3 and this Court’s order in respect thereof.
IT IS NOTED that publication of this judgment under the pseudonym Miller and Harrington is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA59 of 2007
File Number: BRF6207/2000
| Ms Miller |
Appellant
And
| Mr Harrington |
Respondent
REASONS FOR JUDGMENT
Over seven days in February, March and May 2005, Buckley J heard and determined a parenting dispute between the parties to this appeal, delivering judgment on 8 July, 2005. Orders made that day provided (among other things) that the two children (then aged 14 and 9) live with the father and have supervised contact with the mother.
Some eight months later, on 1 March, 2006, the mother filed both an Application for Final Orders in Form 1 and an Application in a Case in Form 2 seeking (among other things) an order that the children live with her. By Responses filed on 30 March 2006, the father sought to have each of those applications dismissed.
On 13 April, 2007 Barry J heard the cross applications just described. His Honour did so “on the papers” without cross-examination and delivered Reasons and pronounced Orders on 31 July, 2007 by which His Honour dismissed the mother’s applications.
It is from those Orders that the mother appeals.
Mr Page, Senior Counsel for the mother, described “the gravamen” of the appeal as Barry J “misconstruing” the nature of the application before him in that His Honour “went beyond Rice v Asplund and took into account matters which he ought not have” and “in a summary way [impermissibly] determined issues of substance”.
The central contention so described might – arguably – find reflection in the Grounds of Appeal contained in the Notice of Appeal as filed.
However, Senior Counsel was granted leave, without objection, to amend the Notice of Appeal to add an additional ground of appeal. Whilst not formally abandoning the other grounds, oral argument was directed solely toward the additional ground.
The additional ground reads:
That in purporting to apply the rule in Rice v Asplund to the application for final orders the trial judge erred in that in considering any change or fresh circumstances making it necessary to relitigate the parenting issue the trial judge erred in that he:
(a) made findings of fact as to the conduct of the mother without providing to the mother the opportunity to be heard as to the findings or the relevance of such findings in the application before him;
(b) made his decision to dismiss the application upon the findings of fact as to the mother’s conduct without proper regard to the best interests principle.
In essence, then, this appeal turns on the question of whether the appellant mother was accorded procedural fairness and, in particular, whether the nature of the proceedings which the trial judge conducted were understood by her and, indeed, by all parties.
That question occurs in the context of the application of “the rule in Rice v Asplund” and, specifically, the application of that “rule” when being applied as a preliminary question.
In addition, an appeal is mounted against indemnity costs Orders made by Barry J. We will deal with that aspect of the appeal separately.
The Genesis Of The Hearings Before Barry J
Following Buckley J’s initial orders, a recovery order was required to effect the children coming into the father’s care pursuant to those Orders.
Barry J found, and it is not challenged, that, since the Orders made by Buckley J, the children had gone missing on two occasions. On the first occasion, they were missing for about 10 months, between January and November 2006. The second occasion was of much shorter duration, about five days in January, 2007.
Those circumstances prompted a number of applications and generated a significant amount of affidavit material. The complete history of that litigation is lengthy, relatively complex and not necessary to repeat for the purposes of this appeal.
What is important for present purposes is to examine how Barry J came to hear and determine the husband’s application to dismiss the wife’s application to change parenting orders in the manner that he did, and the form which that hearing took.
During the first period during which the children disappeared, the mother filed an application for final parenting orders in her favour. It is that application, as well as her application for interim orders, which Barry J ultimately dismissed.
The mother claimed then, and has claimed at all times, that neither she, nor any members of her family, were involved or complicit in the disappearance of the children.
The father, on 24 August, 2006 consented to interim orders that the children live with the mother. As outlined in written submissions on behalf of the mother in the hearing before Barry J, this was done “… so as to create circumstances that might cause the presentation of the children…”. The children did not present as a result of that action.
On 21 November, 2006, Coleman J made a recovery order. His Honour also ordered, relevantly:
6. That the matter be listed for a 2 day hearing commencing on 21 February, 2007 in the Family Court of Australia, North Quay, Brisbane, for the examination of witnesses as to the location and recovery of the children.
In an affidavit filed by the mother on 2 January 2007 (and subsequently relied on by her in the proceedings before Barry J) the mother deposes that:
…the children returned to my home unexpectedly on the night of 27 November, 2006. I had not seen [the children] since my last supervised contact visit with them at [the Contact Centre] on Saturday 14 January, 2006. I maintain that I had no hand in the children’s disappearance on 16 January, 2006 and to this day do not know where my children were between 16/1/06 – 27/11/06.
Subsequent to the re-emergence of the children in late November, 2006, the matter came before Carmody J on 1 December.
That occasion appears to be the first articulation of the potential application of the “rule” in Rice and Asplund although, it should be observed, that articulation is less than precise:
HIS HONOUR: No, but you want those days [the two-day hearing ordered by Coleman J] to have a hearing about the future.
MR GALLOWAY: Yes, that’s right, your Honour, we do.
HIS HONOUR: Well should I make an order – are you going to work towards that - - -
MR GALLOWAY: Yes, your Honour.
HIS HONOUR: - - - on the assumption that you will all be ready to proceed on that 21st with a, what is it, a Rice & Asplund application?
MR GALLOWAY: Well, it would have to be your Honour, yes
Despite the apparent reference in the passage just quoted to the purpose of the hearing on 21 February, the Orders made by Carmody J on that day provide, relevantly:
(1) The operation of the Order made by the Honourable Justice Coleman on 21st November 2006 with respect to the children [named] be stayed.
…
IT IS NOTED THAT:
…
(5) The matter is currently listed for trial for two (2) days commencing on 21st February 2007 for the purpose of examination of witnesses as to the location and recovery of the children and it is the attention of the parties that it remain listed for that purpose. [emphasis added]
It is by no means clear, in the light of the interchange between Carmody J and Mr Galloway quoted earlier, why that notation is added to the Orders. The only clue offered by the transcript of the proceedings before Carmody J is an exchange between his Honour and counsel for the father:
HIS HONOUR: If, come 14 days before the 21st it is likely the days are needed to look at contact and residence then the parties will have to file fresh affidavits of changed circumstances or circumstances they say will affect the outcome of the hearing if it is not [the hearing as per Coleman J’s orders]
MR FORREST: It depends, if the children disappear again.
…
MR FORREST: Well, you see, my submission in short to Coleman J was that the right to subpoena witnesses and then seek leave to cross-examine them in the circumstances only arises out of the legislative provisions that provide for a hearing of a location order application and a recovery order application and if there is no further need to locate, you know if it is – so if there is no need for a location order or a recovery order on 21 February, then there would be no right on our part to have some sort of enquiry into the circumstances of their disappearance in the first place in that regard.
HIS HONOUR: I’m not sure about that. Wouldn’t it be relevant to the best interests - - -
MR FORREST: It will depend what other applications are extant at the time.
On 4 January, 2007, Judicial Registrar Smith heard an application by the father that the children live with him. Subsequent to the hearing, and before the handing down of the reserved judgment the following day, the children disappeared again.
On 5 January 2007, each of the mother and the mother’s father were cross-examined before the Judicial Registrar. The transcript of that evidence was in evidence before Barry J. The Judicial Registrar made a further recovery order. The Judicial Registrar also ordered that the children live with the father in these terms:
(1) Until further order, the order that was made on 24 August 2006 be suspended.
(2) Until further order, the children [named] live with the father.
(3) Until further order, the mother and/or [the maternal grandfather] and/or [the maternal grandmother] be restrained and injunctions are hereby issued restraining the mother, the maternal grandfather and the maternal grandmother from spending time with or communicating with [the children] and from arranging for any person or persons to do so on their behalf.”..
Prior to execution of the recovery order, the children presented themselves - on 9 January 2007 - to the police station. The children were placed in their father’s care pursuant to the Judicial Registrar’s 5 January Order.
On 17 February 2007, a report was authored (at the request of the Independent Children’s Lawyer) by a consultant social worker. She interviewed the children on 1 February. She had recourse to an extensive number of documents and also to a transcript of the proceedings before the Judicial Registrar on 5 January 2007. Earlier, in August and September 2006 a different social worker had prepared reports. Each of the social workers’ reports were in evidence before Barry J.
Given the background just described and the challenge made to the nature of the hearing conducted by His Honour and the findings made, it is necessary to outline what occurred on both 21 February 2007 when the matter first came before Barry J and on 13 April, which is the date ultimately appointed by His Honour for the hearing of the matter.
The Mention Before Barry J on 21 February 2007
On 21 February, 2007 the matter came before the Court as the Order of Coleman J required and the subsequent order of Carmody J envisaged.
It will be recalled that this day (and the following day) had originally been set aside by Coleman J for the cross-examination of witnesses in respect of the issue of the then missing children.
When the matter came before Carmody J in December 2006 the children had re-emerged. The original purpose of the 21 February hearing contemplated by Coleman J had (as counsel before Carmody J acknowledged) become redundant. It is this that had led to his Honour maintaining those dates “…on the assumption that [the parties] will all be ready to proceed on that 21st with a …Rice & Asplund application”.
Barry J was the list judge on 21st February. The transcript reveals his Honour advising the parties that, by reason of already hearing a trial, he was unable to accommodate this matter on that day.
Nevertheless, discussion occurred between the Bench and the bar table about substantive issues, including, in particular, events surrounding the disappearance of the children.
However, neither his Honour, nor any counsel, made reference to the purpose of the hearing, being (now) the hearing of an application pursuant to the “rule” in Rice and Asplund as appears to have been contemplated by Carmody J and the parties in December 2006. Indeed, the nature of the application to be heard was never, in terms, articulated either by counsel or his Honour on 21 February.
Furthermore, the discussion between the Bench and the bar table can be seen to have made the position less clear.
Counsel for the Independent Children’s Lawyer, Mr Galloway, gave His Honour what might be described as a broad overview of the history of the matter, including the disappearances of the children.
Thereafter, his Honour turned to counsel for the father, Mr Forrest:
HIS HONOUR: In any event, I was just getting a background summary ….
… just going back to the trial before Buckley J and - - -
MR FORREST: Yes
HIS HONOUR: - - - his Honour’s decision in that regard.
MR FORREST: Yes.
HIS HONOUR: I can’t give this matter two days.
MR FORREST: No.
HIS HONOUR: What I do my best to do, and this is – is I could offer to interview the children tomorrow….
Shortly thereafter, counsel for the father, Mr Forrest, told His Honour that he had a “preliminary point”. This, however, did not relate to an application to dismiss the mother’s applications pursuant to the “rule” in Rice and Asplund (or otherwise), but rather, to the likelihood or otherwise of the mother’s participation in what Mr Forrest referred to as “the trial”:
MR FORREST: Your Honour, I actually have a preliminary point and it’s this. My understanding is that the mother’s [sic] not here today. We were sent – my instructing solicitors were sent correspondence from the mother’s solicitors yesterday saying she wouldn’t be taking part in the trial and accompanied by a very brief medical certificate purporting to express the reason why she wasn’t going to take part in the trial. Now, my - and I haven’t seen her here this morning – but my submission is that if she’s not going to be taking part in the trial …
HIS HONOUR: The - - -
MR FORREST: - - - there can be no trial.”
Mr Forrest continued a short time later and made reference to the potential unavailability of the mother for cross-examination:
…without the mother being here to pursue – you know – prosecute her part of the case and, indeed, be available for cross-examination, then it can’t proceed. And I say that, and it’s more interesting and more relevant or more pertinent because in [the social worker’s] report, she records the mother as having said, she’s not really interested in participating in the Court proceedings any more. She wants them finished. And she was either going to consent to an order, or if consent couldn’t be realised, she was going to take whatever she was given.
Mr Page SC, counsel for the mother, in responding to what had been said by the other counsel, also turned to what might be described as the merits or otherwise of the parenting case as distinct from the issue of whether his client’s application should be dismissed. He told Barry J:
I think what’s been said [by the other counsel] is fair, in the sense that it’s a proper recitation of what’s occurred save one. [The social worker] has produced a report, which we’ve only obtained late last week, I think. The opinion that’s expressed in there as a result- which is based upon what the children have told her are her – their wishes is that the children are, I think, likely to abscond again if they – if their wishes are not given some – interpreted into some orders. She has postulated the view that that they should attend mainstream schools and has postulated an opinion that perhaps they should have weekend contact with their mother in the meantime, and that that might be likely – or could possibly ameliorate the strength of their determination that she perceived had been expressed of her. So that the – if there is any urgency it is, in my submission, in that opinion that they are likely to abscond again according to [the social worker] …
His Honour then returned to the issue of the mother’s possible involvement in the disappearances of the children:
HIS HONOUR: “I have had a look at this matter. I have had a perusal of [the social worker’s] report. One could not help but make the comment that it could be inferred that the mother’s been behind - - -
MR GALLOWAY: Yes.
HIS HONOUR: - - - the children’s disappearance at all times. She’s been aware of their whereabouts and been colluding with whoever has actually - - -
MR GALLOWAY: Yes
HIS HONOUR: - - - been looking after the children.
MR GALLOWAY we’re going to submit, your Honour, that that is a strong likelihood - - -
HIS HONOUR: All right.
MR GALLOWAY: - - - so that you will take that into account.
And, subsequently:
HIS HONOUR: Well, I haven’t got a great deal of time to devote to this matter. I won’t list it tomorrow. I may interview the children at some future time, but it may not get listed before me.
It was, with respect, never made clear by his Honour what application the mooted interviewing of the children by his Honour was directed toward.
At that point in time there were, it appears,:
(a)Applications by the mother for both final and interim relief that the children live with her, each filed on 1 March 2006, neither of which appear to have been set for directions nor otherwise heard or determined;
(b)An Order by Coleman J (paragraph 6 of the Orders of 21 November, 2006), relevantly, appointing 21 and 22 February 2007 for “the examination of witnesses as to the location and recovery of the children”;
(c)An Order by Carmody J of 1 December 2006, relevantly, noting the current listing for “trial” on 21 and 22 February for that purpose and noting also the parties intention to retain those days “for that purpose”;
(d)An application in a case by the Father, seeking both a recovery order (which had been dealt with on 5 January) and an order that, the children live with the father and have no contact with the mother; which, by Order of Smith JR made on 5 January, was to be heard on 21 and 22 February.
Shortly before the end of proceedings on 21 February, Mr Forrest told His Honour:
I’m instructed to ask for a dismissal of the mother’s outstanding application – any outstanding applications. She has – well (a) presumably she’s seeking some - she seeks some - she seeks from the Court some sort of different order on an interim basis, but also she has a final application before the Court. And I’m also asked to - the issue of costs needs to be firmly- well needs to be dealt with …
Barry J responded, ultimately, as follows:
HIS HONOUR: Well … a week after Good Friday, which is Friday 13 April, I can hear this matter. I am not minded to accede to your application just to dismiss the mother’s application, when I’ve only skimmed the file. I’ve heard the submissions. Nobody challenges the accuracy of the summary that counsel has given, but to mount a costs argument, if you could have, say, written submissions …
Shortly thereafter, His Honour said:
HIS HONOUR: If you could each give me, particularly from your point of view, the material you want me to read. Give me that well in advance, so that I can read the file and hear submissions on whether to dismiss the mother’s outstanding applications and also hear you on costs.
Mr Forrest returned to the issue of the mother’s non-appearance indicating that the medical certificate from the mother indicated she was 24 weeks pregnant and unable to participate in the proceedings. His Honour responded:
HIS HONOUR: I was proposing to hear the matter on the papers, but she can give instructions by phone, presumably. Anyway, I’ll hear – look at that issue. The children might have gone underground again by then and we’re faced with new – I’m not inviting that prospect but …
No counsel voiced an objection to his Honour indicating that he was proposing to hear the matter “on the papers” on 13 April. Nor is any further reference made that day to the nature of “the matter” to be heard on 13 April. It is not clear – at least not to us – just what “matter” his Honour was proposing to hear on the papers on that date.
The Hearing Before Barry J On 13 April 2007
On 13 April, counsel for each of the father and mother handed to Barry J a list of the material upon which each relied. Thirty-two documents were relied on in the father’s case and 22 by the mother. His Honour, then, had as evidence before him on 13 April, over 50 documents.
In addition, the mother sought, and was granted, leave to file and read a number of documents on that day. Included in those documents was an Application in a Case which sought, broadly, orders that the children live with her and spend time with the father in accordance with their wishes.
Each of the father and mother relied upon written submissions handed to his Honour on 13 April. Those submissions did not form part of the appeal books, but were sought by us and made exhibits during the course of the appeal. The mother’s written list of documents relied upon included her application for final Orders filed on 1 March 2006, but her Application in a Case filed the same day was not.
As was the case on 21 February, no objection was taken by any counsel on 13 April to his Honour hearing the matter “on the papers”. No other submissions were made by any counsel on 13 April as to the form of the hearing which His Honour was to conduct nor any limitations which it was asserted should apply to it.
At paragraph 20 of the father’s written outline it is said:
The father asks the Court to dismiss the mother’s application for final parenting orders on a summary basis and to order her to pay his costs …
The written outline then referred to the Court’s discretion “to determine whether or not to deal with a Rice and Asplund … argument at a threshold level.
The mother’s written outline directly addressed the “Application to dismiss Mother’s Application”.
It should be observed that neither outline referred solely to facts alleged by the respondent to the application to strike out (i.e. the mother) or uncontroversial facts in arguing their respective positions. Each outline addressed disputed factual matters, including, in particular, those relating to the disappearance of the children.
However, each did so, it seems plain, in the context of a common understanding that what his Honour was determining was an application to dismiss pursuant to the “rule in Rice and Asplund”. That this was the parties understanding emerges from the outlines themselves and the Grounds of Appeal both as filed and as amended.
Findings Made By Barry J
It will be recalled that counsel for the mother’s oral argument commenced by asserting that Barry J “went beyond Rice v Asplund and took into account matters which he ought not have” and “in a summary way, determined issues of substance”.
The argument is that the mother had no proper opportunity to be heard because she prepared to meet, and in fact did only meet, an application to dismiss the application at a preliminary stage (pursuant to the “rule in Rice v Asplund), not a full parenting hearing and any findings made by the trial judge ought to have been confined to the former.
His Honour did not, the argument runs, so confine his enquiry or his findings. Rather, his Honour, made findings against the mother in respect of disputed facts which may have been relevant to a consideration of best interests on the ultimate parenting applications, but which ought not to have been taken into account in an application to strike out.
It is clear that Barry J determined contests of fact. It did not appear to us to be challenged by the Respondent or the ICL that his Honour did so.
Is There Appealable Error?
The changing, unusual, and acute, factual circumstances pertaining to the children in the approximate five-month period between Coleman J’s orders and the hearing before Barry J; the complexity of the litigation history; and the appropriate attention upon the very serious matter of the manner and circumstances of the children’s disappearance on two occasions, all contributed, in our view, to the issue of the disappearance of the children (and the central dispute about whether the mother was responsible for, or complicit in, it) being uppermost in the parties’ minds.
It is, perhaps, somewhat understandable then, that those factual matters received attention on 21 February, in the written submissions and oral arguments of the parties on 13 April and, ultimately, in Barry J’s reasons.
However, although some confusion, in our view, attended its genesis, it is probable that, in the proceedings before Barry J, each of the mother, father and Independent Children’s Lawyer considered that they were addressing or meeting an application to dismiss, at a preliminary stage, on the papers, the mother’s application pursuant to the “rule” in Rice & Asplund.
Before Barry J, no-one articulated the parameters of such a procedure. A question that arises is whether it was unnecessary to do so because the parameters were well known.
This question was not the subject of submissions before us but we think it calls for some discussion, albeit tentatively in the circumstances.
This court has used, and continues to use, expressions such as “striking out” and “summarily dismissed” where financial issues are in dispute. (See, eg: Bigg v Suzi (1998) FLC 92-799; Bain Pacific Associations and Ors & Kelly & Ors (2006) FLC 93-270 per Bryant CJ, Warnick and May JJ). In those types of case, principles familiar to the common law are applicable. In particular, the usual approach has been to determine the application by reference to material in the case for the respondent together with any non-contentious facts. (See, eg, Bain Pacific at para 21).
In parenting applications, when a party submits an application should not proceed to a full hearing a common approach is exemplified by the discussion in this case in the passages of transcript already set out; in particular references to “dismiss the mother’s application for final parenting orders on a summary basis”, after a hearing “on the papers”.
The use of this terminology is readily understandable, both in the light of usage in authorities and usage in the Act, e.g. s 69ZQ(1)(a), which obliges the court hearing an application for parenting orders to “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily”.
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
The application of the rule occurs within proceedings to which the provisions of Division 12A of Part VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.
Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(1)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(1)(g)).
The provisions of s 69ZR(1), empower the court to “make a finding of fact in relation to the proceedings”, to “determine a matter arising out of the proceedings” and to “make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “… at the same time as making final orders”.
The terms of s 69ZN of the Act, which set out the “principles for conducting child-related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
In SPS and PLS (2008) FLC 93-363, Warnick J held:
64.… in strict logic, if a judge is unable to determine on the papers if a change of circumstances, sufficient to embark on a fresh hearing of a parenting issue exists, then what the judge should embark upon is a hearing directed to that question, not one directed to “how the welfare of the children should best be served”
65.However, ellipsis in logic or not, subsequent authority has clearly reiterated that if the rule is not applied as a preliminary matter, then the hearing that follows is a full hearing of the “custody dispute” [emphasis added]
Those statements can be seen to be supported by the earlier authorities referred to by his Honour. (See paras 66 – 68 of Warnick J’s judgment). Warnick J goes on to say:
69. … In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court. The nature of the hearing that follows if the Rice v Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
Later, Warnick J says:
81.Thus, in my view, when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of the party to appear or some lack of compliance with form and procedure, but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will, or ought be, about the interests of the child in not being subjected to further litigation, is more powerfully in the child’s welfare, than to allow the application to continue.
In our view, that passage need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
On the other hand, there is authority to suggest that these are not the only legitimate procedures. In Collivas & Cassimatis [2007] FMCAFam 293, Wilson FM, after noting that one party submitted that the other’s application should be summarily dismissed as it did not overcome the threshold imposed by cases such as Rice & Asplund, said:
…questions arise as to the procedure to be adopted on this application. The first question is whether the threshold question should be decided as a preliminary issue, or whether there should be a full hearing of the evidence. The second question is, assuming that the threshold question is decided separately how the evidence adduced by the parties should be treated for the purpose of determining that issue. For example, if the Court looks only to the affidavit evidence adduced by the applicant and determines whether, on that material, the case should be allowed to go forward, then it seems to me that there is no point allowing the respondent to put on further affidavit evidence. On the other hand, if in determining the threshold issue the Court effectively conducts a mini-trial, then the respondent should be afforded the opportunity she seeks to adduce further evidence in reply to that served late by the applicant.
Among the authorities to which Wilson FM referred was King & Finneran (2001) FLC 93-079 at p 88,367 where Collier J said:
44.To apply the test in Rice & Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. …
Wilson FM also said, of the decision in L & L (1992) FLC 92-274, that the Full Court of the Family Court approved of the judge at first instance dealing with a question of whether to permit a re-opening of parenting issues as a preliminary issue and to restrict cross-examination accordingly. He said that, in that case, evidence was adduced from a court counsellor who was cross-examined and that the Full Court endorsed the approach taken in that case.
However, the learned Federal Magistrate continued:
18.What the cases do not make clear is the process that the court should follow if it decides the threshold question in advance on a preliminary basis. That is, should the application be dealt with as on a demurrer or strike out application, and the court only look at the material of the applicant and decide, on that material alone, whether, assuming it is accepted, there is sufficient evidence to warrant the earlier orders being revisited. Or should the court treat the application similarly to a summary judgment application, and look at the material of both sides, and decide whether there is a serious issue raised which justifies the earlier orders being revisited. Or should the court effectively conduct a trial on the preliminary issue, with evidence and cross examination on the alleged change in circumstances.
19.There is some guidance as to the approach to be adopted. In R & B H, supra, the use of language that the court should be left in no doubt that it is necessary to revisit the parenting orders supports a critical analysis of the applicant’s material. Although the passage from King & Finneran seems to suggest that court looks at all material then available to the court, which encompasses the material from both sides, it seems to me that the court should logically follow a three step process, sequentially dealing with the three questions articulated in paragraph 18 above. Each case will vary of course as to the stage at which the decision can be made that there is/is not sufficient evidence to warrant a re-opening of the parenting issues. As the learned authors of Australian Family Law & Practice, Brown (sic) & Fowler, observe at [16-360], the Full Court of the Family Court has made it clear that the question of whether there were circumstances which required a reconsideration of a parenting issue might, but need not, be determined as a preliminary issue. However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes (sic) circumstances existed. An applicant’s material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant’s material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent’s material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination. (emphasis added)
In the following paragraph, Wilson FM set out passages from the decision of the Full Court of the Family Court in Saad & Saad (1993) FLC 92-332.
We refer to several of the paragraphs quoted, as they bear on the question under discussion:
(3) Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the Court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC 91-857.)
(4) It was therefore not for the wife to adduce evidence sufficient to satisfy her Honour that Burton, J’s orders should continue in force, but rather for the husband to at least place before her evidence sufficient to justify a reconsideration of those orders, and only if that were done was her Honour called upon to decide, in the exercise of her discretion, whether the welfare of the child required the discharge or variation of those orders, or their continuance.
These passages may imply that the initial examination is on the case put forward by the applicant for variation. However, in the following passages the Full Court spoke of other material to which a judge might have regard in such and examination.
(6) In determining the husband’s application, her Honour was entitled to have regard not only to the evidence placed before her by the parties and to the orders of Burton, J. which she was being asked to vary, but also, for the purpose of deciding whether there had been any relevant change of circumstances since the making of those orders, to Burton J’s published reasons for making them, and to any other relevant orders of the Court to which her attention was directed by the parties or by the material before her. Had there been in existence a transcript of the proceedings before Burton, J. leading to his orders of 6 June, 1989, she would have been entitled to have regard to that also, or at least to those parts of it which related to the orders which she was being asked to vary or discharge. …(emphasis added)
On a topic that has not been often examined, we think the discussion by Wilson FM a useful one. However, because, as we have said, the topic was not the subject of submissions before us, we do not necessarily express agreement with all that Wilson FM has said nor address further any tension which may exist between those cases which appear to speak of but two choices, either the application of the rule as a preliminary matter taking the applicant’s case at its highest or a full hearing, and those cases that suggest a broader range of process.
In the instant case, despite what we have said were the apparent perceptions of the judge and parties as to the type of hearing and its purpose, the submissions of the father did not address the matter on the basis that the mother’s case should be taken at its highest and confined to the issue of change of circumstances.
This may be explicable because of the father’s application for orders that there should be no contact by the children with the mother, but that is not clear from the father’s submissions nor did his Honour make it clear to the parties whether or not his Honour was dealing with the father’s application for final orders.
To a certain extent, the submissions in reply by the mother by responding to what were, in truth, submissions of the father extraneous to the true question to be determined, compounded the error and this was taken up by Barry J.
However, if the parties and Barry J assumed that the matter would be determined on the papers, taking the mother’s case at its highest, Barry J went well beyond that parameter.
If some other procedure was proposed, that was never made clear to or by the parties. In our view, it is not possible to say that the proceedings were conducted on a mutually understood basis and there is, as a result, merit in the submission that the mother was not accorded procedural fairness.
The appeal must accordingly succeed.
Before leaving this aspect of the appeal, we consider it important to refer to a statement by Barry J, in the opening paragraph of his Honour’s discussion of the law to be applied, that “the general principles of cause of action estoppel in children’s proceedings were laid down in Rice v Asplund”.
With the greatest respect to His Honour, we do not think it is correct to describe the “rule” as “cause of action estoppel” or, indeed, estoppel at all.
The language of “issue estoppel” or, “res judicata” is not appropriate because the judicial determination of what is in a child’s best interests, although bringing the then proceedings to an end, does not dispose “once and for all” of that issue. (See s 65D(2) and Newling and Mole (1987) FLC 91-856 at 76,467 per Nygh J; Barblett & Fogarty JJ agreeing).
That the use of such expressions is apt to cause confusion in the application of the “rule” and its content. As Warnick J held in SPS and PLS: “at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests’ principle”.
Re-Exercise or Re-Trial?
All parties to the appeal were agreed that, in the event the appeal succeeded, this court should exercise its own discretion rather than remit the matter for rehearing. The ICL submitted, contrary to his position at trial, that this court should re-exercise the discretion in favour of the respondent father.
No application was made by any party to introduce any further evidence in relation to the re-exercise of our discretion. (See Allesch v Maunz (2000) 203 CLR 172).
We consider that the materials before us are sufficient to allow us to exercise our own discretion but only on the basis that we take the mother’s case at its highest.
Is There a Sufficient Change of Circumstances?
Adapting the language used by Warnick J in SPS and PLS, the question for consideration is: assuming the evidence of the mother is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
In accepting the opinion of the then Family Report writer, Buckley J found at the trial before him that, among other things:
·The mother was unable to facilitate a positive relationship between the children and their Father;
·The mother was of the view that the children should choose for themselves whether they see their father or not and, for example, had told the children in the waiting room of the report writer that they did not have to see their father if they elected not to;
·Each child had indicated to the report writer that they did not wish to see their father;
·The mother had “over exposed” the children to the dispute. The older child made it clear she did not want any contact with the father;
·The children have been unduly and negatively influenced by the mother and she was unable to facilitate a relationship between the children and the father while they resided with her;
·If the children were placed with the father they would experience emotional and behavioural difficulties in the short term as they learned to adjust;
·If the children did not reside with the father, contact orders would be ineffectual; and
·In that eventuality, the relationship between the father and the children would further deteriorate.
His Honour’s ultimate conclusions included a finding that the mother was never likely to “facilitate let alone promote” the children’s relationship with their father and that she was “determined to eliminate the father from the children’s lives if she is able to do so”.
His Honour also concluded that if the children remained in the mother’s care, she would “continue to involve them inappropriately in the dispute”.
Before Barry J, Mr Page SC conceded in written submissions on behalf of the mother that “[the elder child] raised many of the issues canvassed as to her relationship with her Father canvassed in the judgment of Justice Buckley…”.
However, Mr Page asserted a number of changes on the mother’s behalf. Taking the mother’s case at its highest, the asserted changes of circumstance appear to be:
·That the father and his family denigrated the mother to the children which had caused the elder child to leave the father’s care (a matter which Mr Page SC described before Barry J as “the most important” of the changes that had occurred since Buckley J’s judgment);
·The mother had given birth to a child and a relationship had developed between the children and that child and separation from that child was “a source of some anxiety”
·The children left the father’s residence “unaided by either of their parents” and had chosen to “go back into hiding”;
·That action was an indication of the stress the children were under;
·The children were now aged 14 and 11 (as opposed to 12 and 9 before Buckley J);
The mother made application to change Buckley J’s orders some eight months after those Orders were made. That application, and the assertions referred to above, need to be seen against the fact that, in the approximate 2½ years between the children coming into the care of the father pursuant to a recovery order (needed to effect Buckley J’s orders) and the hearing of this appeal, the children had been in the care of the mother for approximately six weeks between late November, 2006 (when the children re-emerged from hiding) and early January 2007 when they came into the father’s care pursuant to Smith JR’s order.
During that six week period, the children saw a psychologist. In a subsequent report, he said:
12.From my personal and professional standpoint, it gives me no joy to have to spell out a circumstances which effectively means one parent has to face the immediate prospect of not having contact with his children. However, it would be foolish of me to dress this up any other way. In short, I am of the view that [the children] are presently adamant that they will not return to their mother if they have to have contact with their father. If the priority is to have them returned to some part of their family, then it is my present opinion, that this unfortunate prospect will have to be faced.
The circumstances in which the children disappeared and (on the mother’s case) made contact with the psychologist, despite, on her case, the mother or her family having no knowledge of their whereabouts are a very significant and, even on the mother’s case, unavoidable context in which we, and in our view any court, must consider the significance of the psychologist’s recommendation, in the context of assessing whether there had been a change of circumstances.
At the instigation of the ICL, the parents and children consulted with a social worker and she authored a report. On behalf of the mother, Mr Page SC relied upon that report and contended in written submissions before Barry J that the report raises ten issues “not significant before Justice Buckley”.
We consider that the evidence of the mother, the psychologist, and the social worker in fact illustrates that there has been no material change in the circumstances of the children and the central issues affecting the children remain the same.
The matters said on behalf of the mother to be changes of circumstances are in fact, in our view, manifestations of the fact that the central matters found by Buckley J – including the antipathy of the children toward their father, the difficulties his Honour anticipated would exist for the children on a change in their residential care, the inability of the mother to promote or foster a relationship between the children and their father and the influence of the mother’s attitudes on the wishes of the children – continue to pertain.
In the circumstances of this case, including its litigation history, and, in particular, the opinion of the social worker that “[the children] have been the subject of significant litigation over a number of years and clearly want litigation in relation to themselves to cease” we conclude, again adapting the language of Warnick J SPS and PLS, that it is more powerfully in the best interests of these two particular children, in their particular circumstances, to not allow the proceedings to continue.
The Appeal As To Costs
Barry J ordered that the mother pay the father’s costs on an indemnity basis “of and incidental to all proceedings since the Order of Justice Buckley dated 8 July 2005 including [nominated applications] save that the solicitors for the Father are not to charge for Annexures 1 to 4 inclusive to the affidavit of the Father filed 30 March, 2006”.
His Honour, after referring to the relevant authorities, found four specific “exceptional circumstances” justifying the order for indemnity costs. The foundations of his Honour’s finding that this was an exceptional case are, in effect, the same findings as to conduct attacked in the Rice v Asplund aspect of this appeal.
The arguments attacking his Honour’s costs order essentially mirror those otherwise made in respect of the Rice v Asplund component of this appeal.
We have determined that it was not open to his Honour, in the proceedings before him, to make those findings.
It might be thought, then, that there remains little foundation for the finding as to indemnity costs. However, whilst submissions were sought at the hearing of the appeal in respect of the issues of costs generally, we consider that the parties may not have been given sufficient opportunity to argue that issue in respect of the outcome ultimately found by us.
Accordingly, we propose to give the parties the opportunity to make written submissions with respect to that issue in the light of our determination of this appeal and the re-exercise of the discretion by us.
Conclusion
We have found merit in the additional grounds of appeal and re-exercised the discretion. Upon that re-exercise, we have determined that we would order in accordance with Orders 1 and 2 made by Barry J.
That leads to the conclusion that the appeal against those Orders (an appeal lying against orders, not reasons) will be dismissed. However, the result of the appeal against Barry J’s costs order is as yet undetermined.
We order accordingly.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 15 October 2008
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