Phillips & Hansford

[2019] FamCAFC 165

Family Court of Australia

Phillips & hansford (No. 2) [2019] FamCAFC 165

FAMILY LAW – APPEAL – Appeal against interim parenting orders – Whether the primary judge erred by making an interim order without conducting a Rice and Asplund (1979) FLC 90-725 hearing – Whether the primary judge gave consideration to the necessary s 60CC considerations – Where the primary judge did not err and did not deny the parties procedural fairness by not conducting a Rice and Asplund (1979) FLC 90-725 hearing – Where the primary judge had regard to relevant s 60CC considerations – No merit in any of the grounds of appeal – Appeal dismissed – Written submissions to be provided as to costs.

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the mother sought to adduce further evidence that was likely to be controversial – Where the evidence was not admissible – Application dismissed.

Family Law Act 1975 (Cth) ss 11F, 60CC

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Winter and De Winter (1979) FLC 90-605
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Appellant: Mr Phillips

Respondent: Ms Hansford

Independent children’s lawyer: Legal Services Commission

File Number: ADC 4008 of 2013

Appeal Number: SOA 21 of 2019

DATE DELIVERED: 4 October 2019

Place Delivered: Sydney

Place Heard: Adelaide

Judgment of: Strickland, Ainslie-Wallace & Aldridge JJ

Hearing date: 19 July 2019

Lower court jurisdiction: Federal Circuit Court of Australia

lower court judgment date: 28 February 2019

LOWER COURT MNC: [2019] FCCA 912

REPRESENTATION

COUNSEL FOR THE Appellant: Mr McQuade

SOLICITOR FOR THE Appellant: Jacqui Ion Lawyers

COUNSEL FOR THE RESPONDENT: Ms O'Connor SC

SOLICITOR FOR THE RESPONDENT: D'Angelo Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

Orders

1. The respondent’s Application in an Appeal filed on 4 June 2019 be dismissed.

2. The appeal be dismissed.

3. Any party seeking an order for costs is to file and serve written submissions attaching any relevant offers of settlement within twenty-eight (28) days of the date of these orders with the other party to respond within a further twenty-eight (28) days. The party seeking the costs may file submissions in reply within a further seven (7) days.

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 Phillips & Hansford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE Family Court of Australia at ADELAIDE

Appeal Number: SOA 21 of 2019
File Number: ADC 4008 of 2013

Mr Phillips

Appellant

And

Ms Hansford

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. By way of an Amended Notice of Appeal filed on 4 July 2019, Mr Hansford (“the father”) appeals against interim parenting orders made by a judge of the Federal Circuit Court of Australia in Adelaide on 28 February 2019.

2. The orders made on 28 February 2019 varied the existing arrangement under which the parties’ two children, X born in 2004 and Y born in 2007 (“the children”), spent equal time with each parent, to an arrangement where they spent each alternate weekend with their father pending the hearing of an application for permanent variation of the orders.

Background

1. The parties previously lived in Canberra. Contested parenting and property proceedings took place there in 2015. At that time, one of the orders sought by the mother was that the children live with her in Adelaide. That order was opposed by the father.

2. On 21 January 2015, Judge Hughes determined that the parties were to have equal shared parental responsibility for the children. An order was also made permitting the children’s relocation to Adelaide with their mother. The orders further provided that in the event the father also moved to Adelaide, the children would live on an equal time basis with each parent. They were also to spend half the school holidays with each parent.

3. The mother and the children did move to Adelaide, as did the father. Neither the move to Adelaide, nor the orders made by Judge Hughes, solved the parenting difficulties that beset the parties.

4. The parties returned to the Federal Circuit Court of Australia in Adelaide in 2017 where a number of applications were heard. The mother filed a further Initiating Application in September 2017 seeking to have the children spend less time with the father. It was dismissed by the primary judge on the basis that there was “no likelihood of a change in the orders” (at [3]).

5. The present proceedings arose in the following way.

6. On 15 November 2018, Y dislocated her knee at school. On 16 November 2018, she was due to pass into her father’s care but did not do so. According to an email sent to the father by the maternal grandparents, this was because Y needed assistance with showering and managing steps. The father did not accept this to be the case and did not agree. Y remained with her mother.

7. A MRI was conducted on Friday, 16 November 2018, which disclosed a torn cartilage and patella tendon which required surgical repair. The repair was carried out on the following Monday, 19 November 2018. Y was then placed in a leg brace.

8. A dispute then arose between the parties as to whether Y should convalesce at her mother’s only or should, in accordance with the orders, she spend equal time with each parent. The mother’s position was that the children wanted to spend less time with the father. The father’s response was that the mother was simply manipulating the children into saying so.

9. What then followed was described by the primary judge as follows:

   10.In his affidavit filed on 12 February 2019, he reproduced an email exchange between himself and [Y] which took place on 12 December. I will read the entirety of it:

   Thanks for your concern, dad, but I do not think you understand what the issue is. I’m going to be in the brace until mid-February. I can’t do any soccer things. I also can’t shower on my own because I do not have four arms. The doctor did not ask me how I feel and what I’m comfortable with.

   11.This is a reference, apparently, to a medical report in which the doctor describes [Y’s] physical capability. I continue the quote:

   […] so you can get the normal amount of time. It will be 11 am on Xmas eve to 5 pm Xmas day. I do not want make-up time. There was a way that I felt comfortable, but you did not feel comfortable with that, so we haven’t seen each other. But you will see me on Christmas Eve. And it’s more important that I feel comfortable and safe than it is the exact amount of time in the orders.

   12.The father thought he had detected an adult hand in the writing of that email, particularly as, he says, [Y] is dyslexic. Apparently, a letter was written between solicitors where he raised that concern.

   13.On the next day, there was an SMS from [X] in the following terms:

   Dad, you have fucking hurt [Y]. She just wanted you to apologise for saying she could never use such a good vocabulary and that it was impossible for her to write that email. She wanted you to understand that she wrote it. I fucking watched her write it. I helped her write it. I helped her with spelling. She does not want make-up time. She does not want you to help her shower or put on her underwear. She won’t even let me help. She’s not stupid, she just does not spout nonsense people tell her to say. You fucking hurt her.

   14.The father sent an SMS to [Y], in the substance, apologising.

10. The father then filed an Application in a Case on 20 November 2018 seeking a recovery order in relation to Y.

11. The father’s application came before the Court on 30 November 2018 when his Honour refused to deal with it and it was adjourned to 28 February 2019.

12. On 6 December 2018, there was an incident involving the father in relation to the children’s school, following which X refused to spend time with the father under the equal time arrangement.

13. On 12 February 2019, the father filed an Amended Application in a Case seeking a recovery order in relation to both children. The mother responded with an Initiating Application filed on 21 February 2019, which sought a variation to the orders made by Judge Hughes on 21 January 2015, being that Y live with the mother and spend time with the father each alternate weekend and that X live with the mother and spend time with her father as she wished or, alternatively, every alternate weekend.

14. The matter came before the primary judge again on 28 February 2019 in a duty list. During the course of that hearing, the father’s counsel informed the Court that the recovery order was no longer sought.

15. The primary judge expressed his concern as to what were the views of the children, given their ages, and considered that a report under s 11F of the Family Law Act 1975(Cth) (“the Act”) would be of assistance. This concern arose from the emails which suggested to the primary judge that the father’s position that the mother was manipulating the children was not correct (at [15]).

16. His Honour was also aware that there was an issue as to whether the parenting orders should be reconsidered at all.

17. These considerations led his Honour to adjourn the proceedings to 21 May 2019, specifically noting that the parties should be “in a position to make Rice [and] Asplund type submissions” on that date (at [24]). His Honour also directed that a report be obtained under s 11F of the Act and that the children attend upon a Family Consultant on 16 April 2019 for that purpose.

18. Having regard to the events that had occurred, his Honour also made the following order:

    (1)Until further order the children [X] born [in] 2004 and [Y] born [in] 2007 spend time with the father as follows:

    (a)during school terms each alternate weekend from the conclusion of school Friday until the commencement of school Monday, commencing the weekends of 8 March, 22 March, 5 April and 10 May 2019;

    (b)during the April school holidays from 5.00pm Friday 19 April until the commencement of school Monday 29 April 2019.

19. The order outlined above was made in an attempt to preserve the relationship between the father and the children and because “[i]t is time that the pressure should be taken off a little bit” (at [22]).

The Appeal

1. The father raised five grounds of appeal but they were dealt with by counsel under three headings and we shall do the same.

2. The appeal was opposed by the mother.

3. The Independent Children’s Lawyer appeared and made submissions in support of Ground 3.

Did the primary judge err by making the interim order without conducting a Rice and Asplund hearing? (Grounds 1, 2 and 4)

1. It is useful to set out the three grounds of appeal relied upon in full.

   ·    Ground 1: That the Learned Primary Judge erred at law and in the exercise of his discretion by failing to take into account the findings of fact made by Judge Hughes at the final hearing in respect of parenting on 25 and 26 June 2014 and 1, 2, 3 and 21 October 2014 (as set out in her judgement dated 21 January 2015) including but not limited to that he failed to consider the findings of Judge Hughes as to the conduct of the mother and risk to the children’s relationship with their father if the order for equal shared care was not continued.

   ·    Ground 2: That the Learned Primary Judge erred at law and in the exercise of his discretion by:

   2.1Declining to hear the Appellant’s submissions pursuant to Rice v Asplund (1979) FLC 90-275 as a threshold issue.

   2.2Varying the Orders of Judge Hughes made 21 June 2015 prior to the determination of the Rice v Asplund issue.

   ·    Ground 4: That the Learned Primary Judge erred at law and in the exercise of his discretion by failing to afford the appellant procedural fairness.

   (Amended Notice of Appeal filed on 4 July 2019) (As per the original)

2. The central point made by these grounds and the submissions in support of them was that the primary judge should not and, indeed, could not make any parenting orders of any kind at all (urgent, interim or otherwise) without first undertaking a hearing as to whether it was in the best interests of the children for the parenting orders to be reconsidered.

3. As we will explain, this submission is fundamentally misconceived for two reasons. Firstly, there is no such principle as that suggested. Secondly, the primary judge accepted that there should not be a fundamental change in parenting orders unless it was in the best interests of the children and fixed the matter for a determination of whether there had been such a change in circumstances that reconsideration of the existing orders was warranted.

4. As to the first proposition, we note that no authority was cited in support of it. We are not aware of any.

5. In Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”), Evatt CJ at 78,905 said the following in relation to applications to vary existing parenting orders:

   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 and 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. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.

   (Citations omitted)

6. As was pointed out by Warnick J in SPS & PLS (2008) FLC 93-363 (“SPS & PLS”) at 82,451, the rule is “merely a manifestation of the ‘best interest principle’” and “[t]he application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”.

7. The basis of the principle is that “continuous litigation over the child or children is not generally in their interests” (Marsden v Winch (2009) 42 Fam LR 1 at [49]).

8. His Honour was of the view that the interim order reducing the father’s time with the children was in their best interests for the following reasons:

   22.The unacceptable risk of harm I am considering is that, if the father continues to insist, as so far he has done, on strict compliance with the orders it might undermine the relationship between the girls and himself. That is what I am concerned about because a sensitive parent must, at times, turn around and walk away saying “I am confident in my relationship with my children. There are ups and downs. There are vicissitudes”. Sometimes there are disputes between a parent and a child or children but, if it is essentially a solid relationship, everyone gets over that. I am concerned that, whatever the rights and wrongs of this situation, the father’s, in my view, ill-advised insistence at this point on the equal time orders being observed runs a risk of that relationship between him and his daughters being harmed. It is time that the pressure should be taken off a little bit to ensure that that risk does not eventuate.

9. Clearly, his Honour did not regard this order as one which permanently and significantly changed the parenting arrangements but it was an attempt to preserve the relationship between the children and their father pending a thorough consideration of whether a fundamental change to the orders should be considered. In doing so, his Honour acted entirely within the principles to which we have just referred.

10. The rule in Rice and Asplund is not an immutable rule. As a “manifestation of the ‘best interest principle’” (SPS & PLS at 82,451), it does not trump other considerations that are also in the children’s best interests. Thus, unremarkably, the primary judge found that a short term variation of the orders, pending a full consideration of whether the orders should more generally be reconsidered, was in the children’s best interests. It follows, therefore, that the primary judge did not err and did not deny the parties procedural fairness by not conducting a Rice and Asplund hearing on 28 February 2019.

11. The father’s submissions continued that by failing to conduct a Rice and Asplund hearing, his Honour ignored the following findings of fact made by Judge Hughes:

    11.1.The [mother] painted herself as a victim of her [father’s] bullying, domineering and controlling behaviour.

    11.2.She misled the Court and gave blatantly dishonest evidence.

    11.3.When speaking about the [father] she was surly or dismissive in language and tone.

    11.4.She irrationally and unreasonably blamed the [father] for almost every adverse decision she had made.

    11.5.The [mother] suffered an acute episodic mental illness and may continue to do so.

    11.6.The [mother’s] capacity to provide for the emotional needs of the Children was at times compromised by her hostility to the [father] and may be impaired when she is unwell.

    11.7.She attempted to paint herself as a victim of the [father’s] unreasonable demands.

    11.8.The [mother] interpreted simple and straightforward communication by the [father] as menacing or controlling.

    11.9The [father] had good communications skills and that the problem in the communication (between the parties) lie primarily with the [mother].

    (Father’s Summary of Argument filed on 3 July 2019, paragraph 11)

12. As can readily be seen, almost none of the above matters are a fact against which a change in circumstance might be measured. They are largely findings as to credit or interpretations of evidence, which would not be binding on any judge considering new parenting orders. The significant pressing issue was the views of the children. The Court had stark direct evidence from the children themselves in the form of the emails as to their views. That evidence was to be expanded upon by the report pursuant to s 11F of the Act. The above matters, largely consisting of criticisms of the mother, have little or no relevance to that issue. Those submissions, which were expanded upon at excessive length in oral submissions, including detailed reference to the medical evidence in relation to the mother before Judge Hughes, was an unfortunate exercise of denigration.

13. There is no merit in these grounds.

Did the primary judge take into account the necessary s 60CC considerations? (Ground 3)

1. The father submits that the primary judge was obliged but failed to have regard to the considerations raised by ss 60CC(3)(a), (f) and (i) of the Act. Section 60(3)(c) of the Act was also referred to in the father’s Summary of Argument filed on 3 July 2019 but not pursued in oral argument and we will say no more about it.

2. It is difficult to understand this submission in so far as it relates to s 60CC(3)(a) (which refers to any views expressed by the children and the weight that should be given to them) because almost the whole of his Honour’s reasons are directed to that issue. His Honour described the views of the children as one of his three significant concerns about the matter (at [19]). The others were that the incessant and protracted litigation was damaging the children and that the pressure of litigation was likely to undermine the children’s relationship with one or both of their parents in the long term (at [17] and [18]).

1. As to the children’s views, his Honour said:

   19.The third factor is that these children, who are 11 and almost 15, are no longer passive objects, so to speak, if they ever were. It is clear to me from the email and SMS correspondence between [X], [Y] and their father that they are making their own decisions about what is going on. They are obviously exposed to the conflict. Whatever else the failings of the parents may be, the one that strikes me most is the failure to protect these children from the conflict. These children are fully aware of what is going on and they are in the middle of it and are now old enough to be drawing their own conclusions. They might not be drawing the correct conclusions, but they will be drawing their own conclusions.

2. Faced with this obvious obstacle, the father’s submissions descended into the reliability of the emails which is a matter yet to be determined by the primary judge.

3. Section 60CC(3)(f) of the Act is concerned with the capacity of each of the children’s parents to provide for the needs of the children, including their emotional and intellectual needs. The father’s complaint, as outlined in his Summary of Argument, is that the mother has a history of denying the father “the opportunity to participate in making decisions about major long term issues” in relation to the children (Father’s Summary of Argument filed on 3 July 2019, paragraph 16).

4. The various considerations under s 60CC(3) of the Act are not a mantra to be recited in every case. Only those that are in issue in the proceedings require detailed consideration (SCVG & KLD (2014) FLC 93-582). This is particularly so in interim proceedings. We do not see the relevance of this consideration to the short term interim orders made by the primary judge.

5. The same may be said in relation to s 60CC(3)(i) of the Act (the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents). In effect, the father was again seeking to rely on the material which we outlined above at [35] to justify a submission that the mother’s attitude to the responsibilities of parenthood was poor. We repeat our comments at [36] as to relevance and the appropriateness of the submission.

6. A further difficulty is that none of these subsections were the subject of submissions made to the primary judge. This is not surprising because the matter was only briefly before his Honour for a short interim hearing pending the hearing on 21 May 2019. The focus was almost entirely on the views of the children and, whether or not it would be in the interests of the children and their relationship with their father, for some pressure to be taken off the relationship by reducing the time.

7. This ground does not succeed.

Did the primary judge err in finding there was an unpleasant incident at the children’s school involving the father? (Ground 5)

1. This ground is a challenge to the following paragraph of his Honour’s reasons:

   16.The mother says that the children do not want to spend equal time with the father at the moment due to an unpleasant scene at the school. Unpleasant because it appears that the children were upset, particularly [Y], when the father was insisting in substance that the school recognise the orders and act accordingly. The school was caught in a very difficult situation, obviously, in those circumstances but through negotiation, the problem was resolved and [Y] did not actually spend time with the father.

2. The father submits that the primary judge erred because the father did not in fact attend the school.

3. The father’s affidavit filed on 12 February 2019 refers to an incident on 6 December 2018. The school contacted the father to say that Y was at school to practise for her graduation ceremony. As the children were, according to the orders, supposed to be in the father’s care, he informed the school that he would collect the children. He was apparently informed by a staff member of the school that if he did not do so, he would need to give the mother permission to collect them.

4. Later that day, the mother arrived at the school to collect the children and, according to the staff member’s notes, the mother and then Y became upset when the school refused to let the children leave with the mother. Ultimately, the father was contacted and he agreed that the children could go home with the mother (Father’s affidavit filed on 12 February 2019, p.9-10; Annexure “E” to the father’s affidavit filed on 12 February 2019).

5. Thus, on that day, the father did not attend the school.

6. For her part, the mother’s evidence referred to an incident at the school on 14 February 2019. She delivered Y to school at 3.15 pm (she had been staying home because she still was not fit enough for a school camp that was occurring at the time). According to what the mother was told by the two children, they had a heated exchange with the father during which they told him that they did not want to go to him for the weekend. The children told the mother that both they and the father became distressed but that the paternal grandmother was a “calming influence” (Mother’s affidavit filed on 21 February 2019, paragraph 38). The father’s evidence was substantially to the same effect, which was that the children refused to come into his care and they were crying and raising their voices (Father’s affidavit filed on 25 February 2019, paragraph 6).

7. Thus, it follows that there was an incident at the school where the children were upset and did not want to go with the father where the father was present. The primary judge did not err.

8. However, it emerged during oral submissions, that the point of the ground was much narrower and focussed only on the word “order” used by the primary judge when he said that the father was “insisting in substance that the school recognise the orders and act accordingly” (at [16]). The submission was that “agreement’ was the correct word.

9. The parties, via their solicitors, had agreed for the children to spend the weekend of 15 February to 18 February 2019 with the father. Thus, the father is correct in that the basis on which the children were to move to his care that weekend was an agreement and not an order.

10. The error is entirely trivial and lacks any materiality whatsoever (De Winter and De Winter (1979) FLC 90-605). The substance of [16] is that there was an incident at the school during which the children became upset and refused to go with the father.

11. No error that would require the appeal to be allowed has been identified.

Application to Adduce Further Evidence

1. By an Application in an Appeal filed on 4 June 2019, the mother sought to adduce further evidence in the appeal, which included a recount of the events that had occurred since 28 February 2019 and a copy of a Child Inclusive Conference Memorandum dated 16 April 2019 (“the Memorandum”). Even a brief perusal of that evidence indicated that it was likely to be controversial. It can readily be envisaged that the Family Consultant who prepared the Memorandum would well be asked a number of questions as to the matters she recorded and her opinion. As such, the evidence is not admissible according to well-known principles (CDJ v VAJ (1998) 197 CLR 172 at [111]).

2. The application will be dismissed.

Conclusion

1. It follows that we are not satisfied that there is any merit in any of the grounds of appeal.

2. The appeal will be dismissed.

Costs

1. Both parties indicated that they would refer to written offers in relation to costs, and thus a timetable will be put in place for written submissions.

2. The ICL did not seek any orders for costs in any event.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Aldridge JJ) delivered on 4 October 2019.

Associate:

Date: 4 October 2019