Mullane and Burnham - [2016] FamCA 574

FAMILY COURT OF AUSTRALIA

MULLANE & BURNHAM

[2016] FamCA 574

FAMILY LAW – PRACTICE AND PROCEDURE – Application to re-open parenting proceedings – Rice & Asplund (1979) FLC 90-725 considered – Where final orders made by consent provided for the mother to have sole parental responsibility for the child – Where the final orders provided for the child to live with the mother and spend increasing time with the father on a graduated basis –Where the father makes allegations in relation to the mother’s exercise of parental responsibility in circumstances where the child has various medical conditions and requires treatment – Whether there has been a sufficient change of circumstances that justify re-opening proceedings – Where the Court finds that there has not been a sufficient change in circumstances – Application dismissed.

Family Law Act 1975 (Cth) s 60CC

Newton & Henzel [2016] FamCA 323
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Mullane

RESPONDENT:

Ms Burnham

FILE NUMBER:

SYC

4673

2012

DATE DELIVERED:

14 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

30 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Kennedy

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

Orders

The father’s Initiating Application filed 27 April 2016 is dismissed.
The mother is to file and serve any written submissions on the issue of costs within fourteen (14) days of the date of these Orders.
The father is to file and serve any written submissions on the issue of costs within a further fourteen (14) days, following receipt of the mother’s written submissions.
The mother is to file and serve any written submissions in reply within a further seven (7) days, following receipt of the father’s written submissions.
Any judgment on the issue of costs is to be determined on written submissions in chambers.

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 Mullane & Burnham 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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4673 of 2012

Mr Mullane

Applicant

And

Ms Burnham

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an application by Mr Mullane (“the father”) who is the father of B (“the child”), which seeks to vary parenting orders that were entered into by the parties by consent before Judge Walker on 23 July 2014 (hereafter “the Consent Orders”).
The child was born in 2008 and is presently aged seven . The child suffers from Attention Deficit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mullane and Burnham

Details

AGLC: Mullane and Burnham [2016] FamCA 574
Case: [2016] FamCA 574
Decision Date: 14 July 2016

CaseChat Overview and Summary

The case of *Mullane and Burnham* concerned an application by the father to vary an earlier parenting order. The dispute was heard by McClelland J in the Family Court of Australia.

The primary legal issue before the court was whether the father's application to vary the existing parenting order should be entertained, or if it should be dismissed based on the principles established in *Rice & Asplund*. This involved determining whether there had been a sufficient change in circumstances since the making of the earlier order to justify a fresh inquiry into the parenting arrangements.

McClelland J applied the principles from *Rice & Asplund*, which dictate that courts should not lightly entertain applications to reverse earlier custody orders. The court must be satisfied that there is a significant changed circumstance, a new factor, or a previously undisclosed material factor that would justify such a serious step. This principle is underpinned by the need for finality in litigation, particularly in child custody disputes, to avoid ongoing litigation that can cause significant psychological harm to both parents and, crucially, the child. The court also considered the paramountcy of the child's welfare, as enshrined in section 60CA of the Act, and noted that stability in children's lives is an essential prerequisite to their well-being. The application of the *Rice & Asplund* rule, whether as a preliminary matter or at the conclusion of a hearing, is a manifestation of the best interests principle, requiring an assessment of the evidence against the principles in Part VII of the Act.

The father's Initiating Application was dismissed. The court then made orders regarding the filing and service of written submissions on the issue of costs, with any judgment on costs to be determined on written submissions in chambers.

Orders

Orders of the court

The father’s Initiating Application filed 27 April 2016 is dismissed.

The mother is to file and serve any written submissions on the issue of costs within fourteen (14) days of the date of these Orders.

The father is to file and serve any written submissions on the issue of costs within a further fourteen (14) days, following receipt of the mother’s written submissions.

The mother is to file and serve any written submissions in reply within a further seven (7) days, following receipt of the father’s written submissions.

Any judgment on the issue of costs is to be determined on written submissions in chambers.

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

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

The authorities applying the principles of Rice & Asplund were considered in some detail by Macmillan J in Newton & Henzel [2016] FamCA 323. Her Honour’s useful summary was as follows:12. In Rice & Asplund Evatt CJ said at page 78,905 as follows:The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for … change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…13. In McEnearney & McEnearney (1980) FLC 90-866, referring to the decision in Rice & Asplund, said at page 75,499 as follows:… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.14. Strauss J said in Freeman & Freeman (1987) FLC 91-857 at pages 76,470 to 76,471 in relation to the effect of ongoing litigation as follows:The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.15. Although there have been amendments to the Act, not only does the rule in Rice & Asplund apply but as pointed out by the Full Court in DL & W [2012] FamCAFC 5; (2012) FLC 93-496 the provisions of s 69ZN of the Act, which sets out the principles the court must apply in child related proceedings, apply to a hearing where the rule in Rice & Asplund is being relied upon. The first of those principles set out in s 69ZN is that the “… 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”. 16. The rule in Rice & Asplund may be applied as a preliminary matter or at the end of a full hearing. As Warnick J observed in SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at paragraph 48, which has been endorsed by the Full Court (see Marsden v Winch [2009] FamCAFC 152, DL & W (supra)):(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.(iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.(vi)“Shorthand” statements of the rule may contribute to its misapplication.(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.17. Warnick J in support of his observations with respect to the application being dealt with on its merits also said that:71. An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:Child's best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. …81. … 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 a 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 that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.…84. … The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.18. In the more recent case of Poisat & Poisat (2014) FLC 93-597 the Full Court referring to the observations of Warnick J in SPS & PLS (supra) expressed their doubts at paragraph 54 “… as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made”.