FAMILY COURT OF AUSTRALIA
| MORTON & BERRY | [2014] FamCAFC 208 |
| FAMILY LAW – APPEAL – CHILDREN – WITH WHOM A CHILD LIVES – Where parenting orders were made by consent – Rice & Asplund (1979) FLC 90-725 – Where a further application was brought seeking parenting orders – Where the application for parenting orders was dismissed –Whether there has been a change in circumstances. FAMILY LAW – APPEAL – CHILDREN – BEST INTERESTS – WITH WHOM A CHILD LIVES– Whether the primary judge took into account irrelevant matters – Whether the primary judge gave proper consideration to the child’s views – Where the primary judge took into account irrelevant matters – Where the primary judge failed to take into account the best interests of the child. FAMILY LAW – APPEAL – EVIDENCE – Whether a child has expressed a strong view – Whether a family report should be ordered – Whether a Child Inclusive Conference should be ordered – Whether the father’s evidence was taken at its highest – Where the primary judge refused to order a family report – Whether the child’s view had changed with age and maturity – SPS & PLS (2008) FLC 93-363 – Where the child had not expressed a view in earlier proceedings which resulted in consent orders – Where the primary judge erred by not ordering a family report to canvass the child’s view. |
| Family Law Act 1975 (Cth) |
| Langmeil & Grange [2013] FamCAFC 31 |
| APPELLANT: | Mr Morton |
| RESPONDENT: | Ms Berry |
| FILE NUMBER: | PAC 1610 of 2010 |
| APPEAL NUMBER: | EA 60 of 2014 |
| DATE DELIVERED: | 18 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace & Watts JJ |
| HEARING DATE: | 18 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 April 2014 |
| LOWER COURT MNC: | [2014] FCCA 727 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Andrew Givney |
| SOLICITOR FOR THE APPELLANT: | Tilley Family Law & Mediation |
| COUNSEL FOR THE RESPONDENT: | John Weaver |
| SOLICITOR FOR THE RESPONDENT: | Mahony Family Lawyers |
Orders
The appeal be allowed.
The Court grants to the appellant a costs certificate pursuant to the provisions of 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 in respect of the costs incurred in relation to the appeal.
The Court grants to the respondent 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 in respect of the costs incurred in relation to the appeal.
The appellant’s amended…
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- Morton & Berry [2014] FamCAFC 208
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- [2014] FamCAFC 208
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the primary judge had taken into account irrelevant matters and failed to give proper consideration to the child's wishes, and whether the primary judge had erred in not ordering a family report to canvass the child's view. The court also considered whether the father's evidence should be taken at its highest and whether the child's view had changed with age and maturity. The court examined the principles established in Rice & Asplund and the Full Court's decision in Poisat, which emphasised the importance of taking into account best interests considerations and legislative requirements.
The court found that the primary judge had indeed taken into account irrelevant matters and had failed to give proper consideration to the child's wishes and other relevant factors. The court held that the primary judge had erred by not ordering a family report to canvass the child's view, as the child had not expressed a view in earlier proceedings which resulted in consent orders. The court also found that the father's evidence should be taken at its highest and that the child's view had changed with age and maturity. The appeal was allowed, and the case was remitted for rehearing by a different judge.
The court made several orders, including allowing the appeal, granting costs certificates to both parties, and remitting the appellant's amended initiating application for rehearing by a judge other than Judge Donald. The court's decision highlighted the importance of considering the best interests of the child and the need for the primary judge to properly assess the child's views and other relevant factors in parenting cases.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The Court grants to the appellant a costs certificate pursuant to the provisions of 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 in respect of the costs incurred in relation to the appeal.
3.
The Court grants to the respondent 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 in respect of the costs incurred in relation to the appeal.
4.
The appellant’s amended initiating application filed 3 April 2014 be remitted for rehearing by a judge other than Judge Donald.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As to his Honour’s approach to the mother’s application, that is an application in the nature of summary dismissal or a determination of the threshold issue, it is useful to consider what was said in Poisat where the Full Court said:18. In Miller & Harrington this Court said:72.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.19. Earlier, in Newling and Newling; Mole (Applicant) (1987) FLC 91-856, Nygh J, with whom Barblett and Fogarty JJ agreed, said at 76,467:Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the court. …(emphasis added) Turning then to the appeal; 8 grounds of appeal were raised in the notice of appeal. Ground 7 was abandoned in written submissions. In the written submissions on the appeal, counsel for the father consolidated several of the appeal grounds together and I will consider the grounds in the same way. Ground 1 picks up the matters to which his Honour referred in paragraph 23 to which I have just referred and argues that in relying on the matters there set out, his Honour took into account matters irrelevant to the determination before him. Further, it argues that his Honour erred by taking those matters into account when none of them had been put to him in submissions, and, I infer, no submissions addressed to them. Ground 2 contends that the judge failed to take into account or give any proper consideration to the child’s wishes. Ground 3 argues that the judge erred in failing to consider the particular needs of the child, to whom the application referred but rather referred to general matters. Ground 4 contends that the judge erred in giving precedence to the matters to which he referred in paragraph 23 instead of giving a proper consideration of the child’s wishes. It was argued that the relevant change of circumstances to which attention ought to have been directed in this matter was the child’s “significantly different views” from those expressed, or, more accurately, not expressed in the family report produced in December 2010. It was contended that the evidence of the child’s views was compelling. It is useful at this point to refer to the father’s evidence which was that since early 2012, the child had been expressing a wish to live with him and this insistence was unabated. The father further deposed that the child had told her mother of her wishes. Although the evidence in this regard is somewhat different from the position asserted by the father’s counsel to the judge in submissions, and counsel conceded this morning in oral argument that counsel was incorrect in his expression of how this list came about, the child prepared a list of reasons why she no longer wanted to live with her mother. That list was before his Honour. Further the father said that in February 2014 the child was particularly distressed and the father suggested that she speak to the school counsellor. He said that there was a lengthy interview at which he was not present but he was later told by the school counsellor that the child wanted to live with him. It was also the father’s evidence that on another occasion, he was called by the school because the child was distressed. The mother also attended the school and collected the child. Later the child told the father that her mother said she was not to see the school counsellor again. It is important here to observe that this evidence is untested and I am prepared to assume will be the subject of controversy, however, I set it out because the judge said that he was, for the purpose of the application, taking the father’s evidence at its highest.