NESTOR & HADEN
[2020] FamCAFC 287
•19 November 2020
FAMILY COURT OF AUSTRALIA
| NESTOR & HADEN | [2020] FamCAFC 287 |
| FAMILY LAW – APPEAL – PARENTING – Rice and Asplund (1979) FLC 90-725 threshold issue – Where the primary judge dismissed the appellant mother’s application to re-open proceedings – Exposure to further litigation – Best interests of the child – Weight challenges – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Conclusion drawn by the primary judge not plainly wrong – Appeal dismissed – Mother to pay the respondent father’s costs of the appeal. |
| Family Law Act 1975 (Cth) ss 65DAC, 69ZQ, 94(2A), 117 |
| Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 |
| APPELLANT: | Ms Nestor |
| RESPONDENT: | Mr Haden |
| FILE NUMBER: | SYC | 2985 | of | 2012 |
| APPEAL NUMBER: | EAA | 48 | of | 2020 |
| DATE DELIVERED: | 19 November 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 25 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 March 2020 |
| LOWER COURT MNC: | [2020] FCCA 638 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPELLANT: | Abrams Turner Whelan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Cummings SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Family Lawyers |
Orders
The appeal against the orders of a judge of the Federal Circuit Court made on 24 March 2020 is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $15,830.99 within twenty-eight (28) days of the date of these orders.
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 Nestor & Haden 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 48 of 2020
File Number: SYC 2985 of 2012
| Ms Nestor |
Appellant
And
| Mr Haden |
Respondent
REASONS FOR JUDGMENT
On 24 March 2020 a Judge of the Federal Circuit Court dismissed a parenting application brought by Ms Nestor (“the mother”) in proceedings between her and Mr Haden (“the father”). The proceedings relate to the parties’ two children B born in 2007 and C born in 2009 (“the children”).
The mother’s application for parenting orders was opposed by the father, who relied on the rule in Rice and Asplund (1979) FLC 90-725, contending that it was not in the best interests of the children that there be a reconsideration of the parenting issues.
This issue was dealt with as a preliminary issue and, with the parties’ consent, the matter proceeded on the evidence of the parties without cross-examination.
Her Honour, on 5 March 2020, concluded that the best interests of the children would not be served by further litigation and dismissed the mother’s application for parenting orders (at [145]).
The mother appealed the decision, contending that her Honour erred in her application of the relevant legal principles.
It is helpful to set out the procedural and factual history to the matter to give context to the issues argued on appeal.
Background
The parties married in 2006 and separated either in August 2010 according to the mother, or January 2011 according to the father.
In May 2012 the mother filed an Initiating Application for parenting orders in the Family Court. In preparation for that hearing, a Family Report was prepared by a Family Consultant, Ms D in August 2013.
Days before the hearing of the application, on 30 May 2014 the parties reached agreement and final parenting consent orders were made (“the 2014 consent orders”). In essence, those orders provided for the parties to have equal shared parental responsibility in relation to the children, the children live with the father for five nights each fortnight and otherwise with the mother and that the children spend time with each parent during school holidays and special occasions (at [8]).
Notwithstanding the making of the consent orders, on 27 March 2015 the father filed an Initiating Application seeking clarification of the school holiday orders. On 16 August 2016 Rees J made orders identifying the point at which the school holiday period would commence.
On 1 November 2017 the father, by Initiating Application, sought orders to resolve a dispute over which high school B would attend.
In response, the mother sought that the father’s application be dismissed and further sought an order that B be assessed by a child psychologist. It seems from the reasons for judgment at [12] that in mid-2017, B’s behaviour at school raised concerns and by late 2017 the mother thought B should see a paediatrician, a course opposed to by the father.
Ultimately, the dispute not being able to be resolved by the parties, where B was to attend school was decided by a judge of the Federal Circuit Court as a discrete issue on 17 September 2019.
While the hearing of those applications was pending, the father filed an Application in a Case on 9 May 2018 seeking orders “in relation to medical treatment, medication, paediatric assessment of B and attendance at family therapy” (at [14]).
Those issues were resolved by consent and on 13 August 2018 orders were made which included injunctions restraining the parties from taking the child to any health care professional without the prior written consent of the other party and from giving medication for Attention Deficit Hyperactivity Disorder to either child without the other parties’ prior written consent. Further orders were made for a paediatric assessment of B and the provision of a report of that assessment.
In her response to this application brought by the father, the mother sought that she and the father have equal shared parental responsibility for the children save for medical decisions in relation to them, in relation to which the mother sought that she have sole parental responsibility. The orders sought by the mother proposed a regime whereby, for long term medical and/or health related issues, in the first instance, the father’s consent would be sought for medical treatment and in default of consent, she would make the decision.
In addition, the mother sought a review of the school holiday orders, to identify the point of time in which the school holidays would commence and to identify the “mid-point” in the holidays and other like orders. The mother also sought orders in relation to the children’s extra-curricular and sporting activities and orders about the children speaking to the other parent while in the company of either one of them.
When the parties’ respective applications were listed for the allocation of a hearing date, in something of a volte-face, the father abandoned his application for final parenting orders and sought that the mother’s application be dismissed. The father having withdrawn his application, the mother’s response then became the operative application and it was in response to this that the father argued that it was not in the best interests of the children for there to be further re-litigation of the parenting orders. As I have said, this issue was determined by the primary judge as a threshold matter and the mother’s application for final orders was dismissed.
It was undisputed that the parties have a difficult co-parenting relationship. At the outset, when Ms D prepared her report for the hearing in 2014, she expressed doubts as to the parties’ capacity to communicate and exercise equal shared parental responsibility in light of the way the parties themselves described their relationship. The primary judge noted Ms D’s opinion:
47.…
a) During interview, each parent expressed concern about the tone and manner of the other parent’s communication with them.
…
c)The mother described the co-parenting relationship as “difficult” and “toxic”. She described communication as “very very bad” with “little productive dialogue”.
…
e)The mother reportedly did not anticipate that the nature of the parental relationship or their ability to engage in “productive discussion” would ever improve.
f)The mother was concerned about how practical an order for shared parental responsibility would be and that in reality, it will mean ongoing conflict and, potentially, further litigation.
g)The father was concerned that the mother was exaggerating communication difficulties as a part of a legal strategy designed to gain advantage in the proceedings.
h)The father was “optimistic” about the co-parenting relationship, however, he considered the mother could be inflexible around varying parenting arrangements and would dismiss his requests to change arrangements without giving them reasonable consideration.
…
(Footnotes omitted)
Her Honour said:
49.[Ms D] expressed concern as to the viability of equal shared parental responsibility whilst communication and co-operation between the parents was as unsatisfactory as it had been. She considered, however, that the children would likely benefit from the involvement of both of their parents in decision making about education, extracurricular activities and health. She considered that notwithstanding the communication problems, that there was nothing to suggest that the children’s best interests would be served by one parent holding sole parental responsibility.
(Footnote omitted)
It is tolerably clear that since the 2014 consent orders were made the parties have frequently been at loggerheads over aspects of their parenting of the children and have resorted to litigation to sort out the disputes. Her Honour was faced with the spectre of never ending litigation between the parties in relation to their children who love them and whom they love in turn.
Given the nature of the challenges to her Honour’s order, it is useful to set out in broad terms her consideration. It must be observed too that no challenge was made to her Honour’s careful and detailed articulation of the relevant law, rather the challenges were to her Honour’s application of the principles articulated by her.
Her Honour identified each party’s position and in particular in relation to the mother, said:
57.Looking then at the events and occurrences since the orders were made, it appears that the following matters represent the significant changes identified by the mother in the life of the children and the family:
a)The children’s ages, general development and educational progression;
b)The father having re-partnered;
c)Continuation of the parental conflict and the deterioration of parental communication;
d)Investigation of the children’s medical needs.
Her Honour noted the mother’s submission that to not hear the present dispute would be to “leave the children to struggle on against the reality of the inability of the parents to deal with and resolve their parenting disputes” (at [42]).
In order to assess whether there had been, as the mother asserted, a change in the circumstances, the primary judge looked at the situation that existed at the time the 2014 consent orders were made.
She said:
50.Having regard to the above matters as set out in [Ms D’s] report, I consider that at the time the 2014 [consent] orders were made, the co-parenting relationship could be described, at best, as difficult. Communication was, apparently, poor. Each parent considered that there were issues with the tone and frequency of the other parent’s communication. The parents were, apparently, communicating primarily through email on a once weekly basis.
Her Honour further formed the view that B was aware of and impacted by the difficult relationship between the parents.
Her Honour then moved to consider the asserted changed circumstances against that baseline and considered in significant detail the facts and circumstances attending each asserted change (at [57]–[105]).
Her Honour then turned to consider whether it was likely that at a hearing the mother would be successful in obtaining significant variations of the present orders and concluded that she would not (at [106]–[125]).
Of particular moment in the hearing before the primary judge was the mother’s application for sole parental responsibility in relation to medical and/or health issues for the children.
There was no dispute as between the parties that B had behavioural and social issues which were of long standing concern to both parents and to his school teachers. Her Honour observed that the orders the mother sought provided that before making a long term medical and/or health decision she would first seek consensus with the father. Her Honour also noted that implicit in the mother’s proposal was that should she obtain medical advice she will share with the father and consult with him before taking any decision based on that advice (at [111]–[112]).
After noting that s 65DAC of the Family Law Act 1975 (Cth) (“the Act”) requires consultation and attempts to reach consensus where parties share parental responsibility which, her Honour observed, was very similar to the regime that the mother sought to have through an order for sole parental responsibility in relation to health and/or medical issues, with one exception that if consensus failed, the mother would have the final decision. In short, her Honour concluded that the change to the 2014 consent orders sought by the mother was not, in fact, a significant variation from those orders.
Significant to her Honour’s conclusion as to whether there ought to be an order for sole parental responsibility for the mother in relation to medical issues was an incident in which, in broad terms, the mother took B to a paediatrician without informing the father, and having received advice and a report from the doctor did not inform the father of it.
Her Honour concluded that the mother’s conduct raised the question of whether the mother had the capacity to consult with the father about these issues even were such an order to be made (at [119]). Further, her Honour concluded that the evidence did not clearly establish that it would “ameliorate or resolve the parental conflict” (at [120]).
Neither was her Honour of the view that the mother’s proposed changes to the orders as to school holiday time, extra-curricular activities and communication represented significant changes, and said that these matters could be worked out by the parties albeit perhaps not in an easy or comfortable process (at [124]).
Finally, her Honour concluded that there was a risk to the children if the proposed litigation continued (at [139]). She observed that instigation of further litigation would likely lead to the appointment of an Independent Children’s Lawyer who would inevitably interview the children. Further she suggested an expert report might also be required and, given the children’s ages, they would be bound to participate (at [130]–[131]).
She concluded:
133.The reality of these matters for the children is clear. [B] and [C] have been described as highly intelligent children. They will know that their parents have returned to court. [B] in particular has been aware that his parents have been to court in the past including, in recent times, in relation to the issue of high school. By meeting with an [Independent Children’s Lawyer] and by participating in family report processes, each child’s experience, thoughts and feelings will be observed, explored, assessed and analysed. It is likely – although not inevitable – that school records and counselling records will be subpoenaed. Further litigation is likely to be invasion into the lives of children who should, at this point, be concerned with childhood worries such as navigating friendships, achieving at school or on the sports field or in their chosen hobbies or pursuits.
…
135.With the best will in the world, it will not be possible to quarantine [B] or [C] from involvement in the proceedings. It is inevitable that by embarking on a further round of parenting proceedings, the children will be aware – for a significant period of time – that the parental conflict continues and that their parents are at court again. This can only be to the children’s detriment.
After referring to the report of an assessment of B conducted in 2018 which warned that he was at risk of increased “emotional, social and behavioural difficulties” (at [136]) in the context of his parents acrimony and disharmony, her Honour said:
138.It appears inevitable that parental conflict will continue either with or without ongoing litigation. If that is correct, [B] and [C] will continue to be exposed, to some extent, to the risks identified by the multidisciplinary team that undertook the assessment. I consider, however, that the identified risks of emotional, social and behavioural difficulties arising from the parental conflict are likely to be exacerbated by further litigation, particularly in circumstances where the children cannot be quarantined from that litigation. The reality is that not only will the children be exposed to the usual levels of parental acrimony and disharmony, they will be exposed to the additional levels that will arise as a consequence of each parent’s participation in the litigation process.
It is against that background that I turn to consider the grounds of appeal.
The appeal
Before moving to consider the grounds of appeal, it is worth noting that the primary focus of the argument both written and oral is her Honour’s refusal to make the order for sole parental responsibility in relation to medical decisions for each of the children. Although the mother also appeals her Honour’s refusal to entertain further litigation in relation to the variations in the school holiday, sporting and extra-curricular activities and communications orders, the grounds deal with them but obliquely.
The mother raises six challenges to the primary judge’s orders. They are wordy and in some respects contain submissions as well as identifying the contended error. They are set out in summary form as follows:
·The primary judge “erred in failing to properly consider the effect upon the children of the likely continuation of the parenting dispute regardless of whether there was no longer a forum in which to ventilate such dispute” (Ground 1(a)).
·The primary judge erred in finding the orders sought by the mother did not represent a significant variation from the then present orders when the mother sought sole parental responsibility for medical decisions pertaining to the children (Ground 1(c)).
·
The primary judge failed to consider that at the time of the hearing before her, several discrete issues have been determined by the Court which showed that such disputes “could (and it is contended should) be dealt with in an appropriate and timely manner without undue further harm to the children” and this ground further contends that the primary judge failed to “engage with arguments as to the appropriate utilisation of
s 69ZQ” of the Act (Ground 1(f)).
·The primary judge erred and mistook the evidence when she said that the evidence did not disclose whether C was aware that the parties have been in frequent litigation before, where instead that inference was available to her Honour on the evidence (Ground 1(g)).
·The primary judge erred in failing to properly consider the length of time since the first orders were made and that the level of maturity of the children had changed significantly since then, and her Honour failed to take into account that it was “strongly arguable” that the present orders were no longer in the best interests of the children and in B’s best interest in particular (Ground 1(h)).
·Although the primary judge correctly identified that a cautious approach was required when dealing with this issue at a preliminary stage, her Honour did not act cautiously (Ground 1(j)).
Under s 94(2A) of the Act, this Court is entitled to give its reasons for judgment in short form in the event that the appeal is to be dismissed and if, in the opinion of the Full Court, the appeal does not raise any question of general principle. As these conditions are fulfilled here, I propose to give reasons in short form.
Grounds 1(a) and (c)
These challenges concern her Honour’s assessment of the risks to the children of prolonging the litigation and the assertion that in that consideration, the primary judge did not take into account the asserted benefit to the children from the order for sole parental responsibility in relation to medical issues.
Senior counsel for the mother argued on appeal that if the order was made then B could have the prompt attention and medical treatment he needed. For the father it was contended that there was no evidence that B had ever been denied medical attention and that despite their difficulties in relation to the treatment of B’s behavioural issues, the parties had nevertheless managed to agree on other medical issues for him (at [118]).
Whatever benefit was asserted to flow from making the order for sole parental responsibility proposed by the mother, the primary judge concluded that while the mother seeks to be able to act as the arbiter in making the final decision as to health and/or medical issues, this would not “preclude the father from approaching the court to seek to restrain her from making or implementing a decision” and thus it was unlikely that the orders sought would represent a significant variation from the 2014 consent orders (at [115]).
As part of this argument, the mother challenged her Honour’s identification of the risks to the children of prolonging the litigation about them, and argued, for example, that if there was further litigation, perhaps it would be unnecessary for an Independent Children’s Lawyer to be appointed or perhaps there would be no need for a further report which would involve interviews with the children.
To the extent that these arguments are intended to challenge her Honour’s conclusions in this regard, they must fail. Her Honour’s conclusions were well open on the facts, indeed, the evidence entirely supported those conclusions (Edwards v Noble (1971) 125 CLR 296 per Barwick CJ at 304). It is also worth noting that senior counsel for the mother, who contended in the Summary of Argument filed on 28 July 2020 that the appointment of an Independent Children’s Lawyer is not a forgone conclusion, submitted to the primary judge that this was the very sort of case in which the appointment of an Independent Children’s Lawyer would be indicated (Transcript 5 March 2020, p.20 lines 1–7).
These challenges are not made out.
Grounds 1(f) and (g)
In Ground 1(f), the mother contends that the primary judge “failed to properly consider” the fact that earlier litigation about the issue of where B was to attend school had been decided as a discrete issue, thus demonstrating that such an issue could be dealt with “without undue further harm to the children”.
It is not asserted that her Honour was not well aware of the earlier decision, but the submissions contend that her Honour ought to have considered that the decision about schooling having been made, litigation conducted in an “appropriate and timely manner” was in the children’s best interests.
Ground 1(g) contends that while her Honour was correct to note that there was no specific evidence of whether C was aware of the court proceedings, she ought to have inferred it from other evidence.
The children’s awareness or becoming aware of the litigation between the parents was a matter taken into account by her Honour in determining whether it was in their interests for there to be further proceedings. Whether or not C actually knew, or suspected that her parents were again at litigious loggerheads was but one factor in her Honour’s consideration of the issues and, given the issues sought to be agitated, not determinative of the matter.
These two grounds challenge the primary judge’s fact finding. It was not argued that the evidence did not support her Honour’s findings, but rather, in effect, contended that she ought to have come to a different conclusion on the evidence and for the reasons set out in the discussion on Grounds 1(a) and (c), these grounds must fail.
Ground 1(h)
This ground contends that her Honour failed “to properly consider” the various matters to which she referred in coming to her decision. So that it is clear, the challenge is not that she failed to take these matters into account but that her consideration of them was not “proper”. From the mother’s Summary of Argument it seems that the complaint is that the primary judge did not indicate the weight she gave to each particular factor taken into account in coming to her decision. The submission further points to a number of matters to which her Honour gave no consideration, for example the length of time since the 2014 consent orders were made.
Her Honour’s reasons for judgment make it clear that she took into account of the changed circumstances relied on by the mother in seeking a review of the orders (at [57]–[105]) and thereafter considered each of them in particular detail including the children’s ages, development and education as at the time the 2014 consent orders were made (at [59]–[70]). After her detailed discussion on the changed circumstances of the parties and the likelihood of the 2014 consent orders being varied in a significant way, her Honour continued to consider all of the matters relevant to her decision at the conclusion of which she said:
140.Accepting the mother’s evidence at its highest, there is a real question as to whether the orders she seeks would be made in any event when regard is had to the time it would take to hear and determine the application, the ages of the children now and at the likely time of final hearing, the factual disputes between the parties and the evidence about communication and decision making to date.
141.Even if the orders sought by the mother were to be made, it appears unlikely that they will, individually or in their totality, reduce the conflict between the parents significantly or at all. It appears unlikely that the orders proposed by the mother, individually or in totality will reduce the potential for further family law proceedings significantly or at all.
The contention that her Honour failed to “properly” take matters into account a range of circumstances cannot be sustained when her reasons for judgment are fully considered. Further, the challenges in Grounds 1(a), (f) and (h) are in fact challenges to the weight or importance attributed by the primary judge to the evidence before her. The determination of weight is a matter quintessentially for the primary judge and that another court may have arrived at a different approach to the evidence is insufficient to justify appellate intervention (Gronow v Gronow (1979) 144 CLR 513 at 519). These challenges are not made out.
Equally Grounds 1(c) and (g) challenge the primary judge’s findings of fact. What inferences are drawn and what facts are found on the evidence is a matter for the primary judge and were entirely supported by the evidence. No error is established.
Ground 1(j)
This ground asserts error in her Honour not adopting a cautious approach to the determination of the issue before her.
When considered against the mother’s Summary of Argument, this ground is in fact a complaint that the primary judge did not make the orders the mother sought.
The submissions supporting this ground also assert that her Honour erred in not giving “consideration of the issues [raised by] s 69ZQ” of the Act which allows the Court to decide which issues in proceedings require full investigation and which may be dealt with summarily and it was argued that her Honour did not have regard to this section and thus erred. However, although the written submissions made to the primary judge refer to the section and to Miller & Harrington (2008) FLC 93-383, the matter was not taken further with the primary judge. No oral submission was made to her Honour on this point, and, indeed, the parties understood that her Honour proposed to consider the question of whether there has been sufficient change in circumstances to warrant a re-opening of parenting issues as a preliminary issue. In the absence of any submission to her Honour or on appeal as to what work that section would do in the determination of the matter before her, it is difficult to assert an error.
Her Honour’s decision was a discretionary one. To successfully challenge the exercise of the primary judge’s discretion, it must be shown that the judge was “plainly wrong”. It has not been demonstrated and these grounds are not established.
Thus the appeal will be dismissed.
Costs
The father sought an order for costs in the event that the appeal was wholly unsuccessful (s 117(2A)(e) of the Act). Although the mother submitted that an order ought not be made in the circumstances where her appeal has been wholly unsuccessful, it is appropriate that she pay the father’s costs of the appeal as set out in the schedule of costs filed on 21 August 2020, in the sum of $15,830.99.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 19 November 2020.
Associate:
Date: 19 November 2020
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