Poisat & Poisat
[2014] FamCAFC 128
•21 July 2014
FAMILY COURT OF AUSTRALIA
| POISAT & POISAT | [2014] FamCAFC 128 |
| FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – where the appellant father sought at trial to vary final parenting orders – where the father challenges on appeal the trial Judge’s application of the “rule in Rice v Asplund” – where the father contends the trial Judge erroneously confined herself in the manner in which she dealt with the father’s application for a variation of parenting orders – consideration of the “rule in Rice v Asplund” – whether the trial Judge erred – where nothing to indicate the trial Judge’s discretion miscarried – no error demonstrated – father ordered to pay the mother’s costs of the appeal. |
| Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006(Cth) Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) |
| Bennett and Bennett (1991) FLC 92-191 Langham and Langham (1981) FLC 91-014 Langmeil & Grange [2013] FamCAFC 31 Lowe v Lowe (Unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990) Marsden & Winch (2009) 42 Fam LR 1 Miller & Harrington (2008) FLC 93-383 Newling and Mole (1987) FLC 91-856 Norbis v Norbis (1986) 161 CLR 513 Rice and Asplund (1979) FLC 90-725 SCVG & KLD [2014] FamCAFC 42 SPS & PLS (2008) FLC 93-363 |
| APPELLANT: | Mr Poisat |
| RESPONDENT: | Ms Poisat |
| FILE NUMBER: | SYC | 768 | of | 2012 |
| APPEAL NUMBER: | EA | 161 | of | 2012 |
| DATE DELIVERED:: | 21 July 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Murphy & Austin JJ |
| HEARING DATE: | 13 May 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 November 2012 |
| LOWER COURT MNC: | [2012] FamCA 968 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr R Harper |
| SOLICITOR FOR THE APPELLANT: | Fox & Staniland Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms S Christie |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
Orders
The Appeal be dismissed.
The appellant father pay the respondent mother’s costs of the appeal as agreed in writing or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Poisat & Poisat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 161 of 2012
File Number: SYC 768 of 2012
| Mr Poisat |
Appellant
And
| Ms Poisat |
Respondent
REASONS FOR JUDGMENT
The father of two children appeals orders made by Rees J on 16 November 2012 dismissing his application to vary parenting orders made by consent on 10 September 2010.
The appeal concerns her Honour’s application of “the rule in Rice and Asplund” and, more specifically, the nature of the proceedings that took place before her Honour.
The Grounds of Appeal
The Notice of Appeal was drafted at a time when the father represented himself. The written outline of argument, which was prepared by legal practitioners on the father’s behalf, seeks, sensibly and properly, to condense and reframe the grounds set out in the Notice of Appeal filed on 14 December 2012. Equally sensibly, no objection is taken by the mother to the appeal proceeding on those reframed grounds.
As they appear in the father’s written outline of argument paragraph (1), and as argued, the grounds pursued are as follows:
a)the learned trial Judge erred in principle by concluding that the disposition of the Appellant’s parenting application could only be by way of summary dismissal, or after a full trial of the proceedings in circumstances where the evidence before the Court, the principles governing applications for summary dismissal, and considerations of natural justice have rendered a limited contested hearing on the merits appropriate, and;
b)the learned trial Judge erred in principle by determining the Appellant’s parenting application in accordance with the “rule in Rice v Asplund” when there is not a [sic] such a “rule”, or “principle”, whether arising from the decision of the Full Court in Rice v Asplund (1979) FLC 90-275 or otherwise, and failing to determine such application in accordance with the established principles governing applications for summary dismissal.
The first ground deals with the manner in which the parties’ applications were dealt with by her Honour; the second challenges the existence of the “rule” or “principle” which governed those proceedings. It is convenient to deal first with the questions to which the latter ground is directed.
The “Rule in Rice and Asplund”
The second of the two grounds of appeal contains, as we understand it, two central assertions. The first is that there is no “rule” or “principle” arising from the decision of this Court in Rice and Asplund (1979) FLC 90-725 or otherwise. The second assertion, which can be seen as, effectively, a corollary of the first, is that “established principles governing applications for summary dismissal” ought apply to applications which seek to change existing parenting orders.
Is there a Rule or Principle?
Despite the bold assertion in the second of the two grounds just outlined, the oral argument on behalf of the father was, perhaps understandably, not so adventurous.
What is now universally described as “the rule” or “the principle” emanating from the decision of this Court in Rice and Asplund is, it cannot be doubted, firmly entrenched in family law in Australia having been referred to and applied in numerous decisions of this Court over the last 25 years (see, for example, Langham and Langham (1981) FLC 91-014; Newling and Newling; Mole (Applicant) (1987) FLC 91-856; Bennett and Bennett (1991) FLC 92-191; and, more recently, in Miller & Harrington (2008) FLC 93-383; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Langmeil & Grange [2013] FamCAFC 31).
Despite the terms of the second ground of appeal, no argument in this case addresses the decision of the High Court in Norbis v Norbis (1986) 161 CLR 513 or, more particularly, the point of distinction between the judgment of Brennan J and the joint judgment of Mason and Deane JJ in that case. Brennan J said (at 537):
It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that principles may harden into legal rules which would confine the discretion more narrowly than the parliament intended.
Mason and Deane JJ contended that (at 519):
…there may well be situations in which an appellate court would be justified in giving such guidance the force of a binding rule by treating a failure to observe it as constituting grounds for a finding that the discretion miscarried.
While little attention has been paid to that distinction in decisions of this Court in which the “rule in Rice and Asplund” has been applied or discussed, it can be said that the degree to which the principle has become entrenched in the family law of this country and the manner in which it has been applied sees the principle having all the hallmarks of a “binding rule” in the sense in which Mason and Deane JJ use that expression.
Such an interpretation derives force from the treatment of the principle in the unreported special leave application in Lowe v Lowe (unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990). Tellingly, there is reference to it by the legislature (albeit as a “principle”) in Notes to both s 44 of Schedule 1 to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and s 47(2) of Schedule 1 to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). The Explanatory Memoranda to both pieces of legislation, too, refer to “the principle in Rice and Asplund” limiting:
89.…the court’s capacity to rehear matters in two kinds of cases: those where there is a change in the circumstances of the parties where some new factor has arisen which would justify a serious step; and those where there is some factor which was not disclosed at a previous hearing that would have been material.
90.It is not generally in the best interests of the child to have repeated applications concerning them before the courts…
91.The note following sub-item 47(2) directs the reader to the principle in Rice and Asplund. This note is to assist readers, particularly self-represented litigants, to understand how sub-items 47(2) links to the common law.
(Family Law Amendment (Family Violence and Other Measures) Bill 2011 (Cth), Explanatory Memorandum. See, also, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth), Supplementary Explanatory Memorandum, at [10]-[13]).
Whether or not the principle might be properly called a “binding rule” in the sense used by Mason and Deane JJ, for present purposes it can be said that the “rule in Rice and Asplund” is of long-standing, has been consistently recognised and applied both in this Court and at first instance, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.
Having regard to all of those matters, a departure from the principle (or “binding rule” or “guideline”) emanating from Rice and Asplund, as the second ground of appeal suggests, requires cogent arguments as to why earlier decisions of this Court are wrong and should not be followed. No such arguments have been made in the present case.
Further, we see no reason to ourselves find that there is no such rule or principle as “the rule in Rice and Asplund”.
The Application of “Established Principles Governing … Summary Dismissal”
The alternative proposition contained within ground 2 suggests that the “rule” or “principle” applied by her Honour ought to have been jettisoned in favour of applying “established principles governing … summary dismissal”.
That proposition, too, runs contrary to principles of long standing which have been frequently applied.
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.
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…
Again, if it is said that a well-established principle of long-standing should be held wrong or not followed, cogent reasons must be advanced for that occurring. No such reasons have been proffered by the father in this case.
Again, we see no reason ourselves why those well-established principles should be departed from.
The second ground fails.
The Application of the “Rule” by the Trial Judge
Relevant Procedural and Factual Context
Final parenting orders were made by consent in respect of the parties’ two children in September 2010, at which time the children were 10 and six years of age respectively. The broad effect of the orders was that the children would live with the mother and spend time with the father five nights in each fortnight, and the parents would have equal shared parental responsibility.
It should be observed that nothing in her Honour’s reasons or the evidence before her Honour suggests otherwise than that the parties are loving parents committed to their children’s best interests. The consent orders made in 2010 contemplate a significant involvement of both parents in the children’s lives.
On 14 February 2012, the father filed an application seeking to increase the time between he and the children from five nights to seven nights per fortnight (i.e. equal time). A separate order sought by the father addressed the children’s schooling but this issue was ultimately resolved between the parties.
At a procedural hearing before Fowler J, then counsel for the mother indicated to his Honour that “[g]iven that the Rice and Asplund issue is the threshold issue, we would ask that the [family] report only go to the issue with the school, namely the child’s wishes and if it can be limited to that…” (transcript of proceedings, 28 August 2012, p 5, lines 17-19). His Honour responded to that suggestion by seeking to allocate time so that he could “…deal with the Rice and Asplund issue” and ordered a “…full family report for the matter with particular reference to the wishes of the children in relation to – or the views of the children in relation to equal time arrangements between parents…” (transcript of proceedings, 28 August 2012, p 8, lines 27-29).
Consequent upon the retirement of Fowler J, the matter came before Rees J.
At the first hearing of the matter before Rees J on 26 September 2012, her Honour identified the application before her as the mother’s application “…for the dismissal of the father’s substantive application based upon Rice & Asplund…” (transcript of proceedings, 26 September 2012, p 2, lines 18-20). Her Honour queried whether Fowler J had “…indicate[d] [to the parties] whether or not the matter was to be dealt with on the papers.” Having been advised by the mother’s then counsel that his Honour had not so indicated, her Honour said to the self-represented father that “…it’s sensible for me to deal with [the application] on the papers. I’ve read all the affidavits … I will hear [the mother’s counsel] first and then, Mr [Poisat], I will hear what you have to say” (transcript of proceedings, 26 September 2012, p 2, lines 36-37)
Submissions then ensued, including submissions by the father in respect of “the Rice and Asplund issue”. In the course of those submissions the father indicated that the children’s views “…haven’t been heard at all, at this point, and I think that they should be” (transcript of proceedings, 26 September 2012, p 10, lines 4-5). At that time, no family report was before the court. Her Honour then indicated to the parties that they might consider the prospect of resolving the issue and the matter was adjourned.
When the matter resumed before her Honour on 13 November 2012, the family report was received into evidence. Her Honour then continued to hear “whatever further submissions” the father wished to make and explained that process to the father. In doing so her Honour said that “…what remains now is to conclude the determination of the wife’s application for an order under the rule in Rice & Asplund” (transcript of proceedings, 13 November 2012, p 2, lines 31-33).
In the event, the father’s application to vary the existing final parenting orders was dismissed.
The Reasons for Judgment
Her Honour recorded, with respect correctly, that the father’s proceedings “…fall to be determined pursuant to Part VII of the Family Law Act 1975…” (at [11]) and noted that, because the application sought a change to existing agreed, arrangements, particular attention needed to be given to ss 60CC(3)(d) and (3)(l) of the Family Law Act 1975 (Cth) (“Act”) which, her Honour said, “…relate to the effect of change in the children’s lives and the benefit to the children of finality in litigation” (at [11]). Her Honour then reviewed the authorities, commencing with the decision of this Court in Rice and Asplund ([12]-[21]). No challenge is made on this appeal to her Honour’s outline of the principles there discussed.
Her Honour thereafter outlined (at [26]-[28]) the changes in circumstances contended for on behalf of the father, before turning to the issue the subject of this appeal, which her Honour framed as follows:
29.The issue which I am required to determine is whether the matters relied upon by the father are of sufficient significance for the Court to embark on a fresh hearing in relation to the parenting arrangements. One of the matters that I must take into account is whether the Court is likely, after a fresh hearing, to change the arrangements for the children. To embark on the pathway to a fully defended hearing for the children will be a stressful procedure and precisely the evil from which the law says they are to be protected unless I find that to do so is in their best interests.
30.Because the issue is determined at a preliminary stage in the proceedings, it is determined on untested evidence. I am required to weigh up the benefits to the children of allowing the matter to be contested in a fresh hearing against the detriment of their being again involved in the stresses of litigation.
The issues which her Honour identified as being relevant to a determination of the children’s best interests were then considered (at [34]-[36]). Her Honour’s discussion of that issue is brief. No issue is taken on this appeal in respect of that discussion. The nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings (see, for example, SCVG & KLD [2014] FamCAFC 42). It is not suggested on this appeal nor, with respect could it be, that her Honour’s reasons do not reflect a proper consideration of the relevant best interest issues.
Her Honour’s reasons then record:
37.As is clear from the authorities, the decision to dismiss a parenting application is a decision based on the children’s best interests. In making this decision, I have placed particular weight on the interests of the children not being involved in further litigation, particularly having regard to their ages and their stated wishes, and I find that those matters outweigh any benefit to the children of allowing the litigation to continue.
38.There is no evidence before me that suggests that the changes in the father’s circumstances which he details are of such significance to the welfare of the children that it is likely that they will benefit from having the parenting arrangements revisited.
Did her Honour err?
The gravamen of the argument by the father in support of the first ground is contained in the written outline filed on his behalf. It is convenient to set out the salient parts:
12.The substance of this complaint is that the learned trial Judge erred in principle in determining the Respondent’s application on the basis that there were only two options open to Her Honour. Those options were seen by Her Honour as being to dismiss the Appellant’s parenting application “on the papers”, or to decline to do so unless and until the application had been determined after a trial. With respect to the learned trial Judge, the approach can be seen as “all or nothing”.
13.It is submitted that a balanced reading of the learned trial Judge’s discussion of “The Law” … leaves little scope for doubt that Her Honour so perceived the possible outcomes of the application before her.
…
15.It is respectfully submitted that the learned trial Judge’s two options approach was erroneous in law, and contrary to the authorities. The Appellant contends that the authorities, and particularly those subsequent to the 2006 amendments to the provisions of Part VII of the Act relating to parenting proceedings, established that the Respondent’s application did not raise only the two possible outcomes identified by the learned trial Judge.
16.The appellant submits that, constraining the possible outcomes in the manner in which the learned trial Judge did, in the circumstances of this case, precluded a proper consideration of “best interests”, whatever the extent to which such interests required analysis. By the conclusion of the hearing on the second day, the learned trial judge had before her the memorandum of [a Family Consultant] which identified a number of “Key Issues” of significance … and concluded with the observation that “A judicial decision informed by comprehensive assessment will be required on (sic) order to determine this matter” … Such assessment was provided by the subsequent report of [another Family Consultant] … whilst [the Family Consultant] recommended that the parenting orders then in force continue until the end of 2013, she also recommended that the children “live with their parents on an equal time basis on a week about schedule from the beginning of the 2014 school year” … It is submitted that [the Family Consultant’s] recommendation alone rendered dismissal of the Appellant’s parenting application erroneous. As [the Family Consultant’s] report was in evidence the learned trial Judge’s dismissal of the Appellant’s parenting application placed him in the position, both in a practical and legal sense, where he would almost certainly be precluded from relying upon [the Family Consultant’s] expert opinion evidence were he to lodge a further application to change the current parenting orders. Whether that situation arose from the principles of res judicata issue estoppel, or some version of the “rule” or “principle” emerging from Rice v Asplund, that is the position in which the trial Judge’s orders place the Appellant.
The reference to “res judicata” or “issue estoppel” underpins, in our view, a fundamental difficulty for the father. The potential application of one or both of those evidentiary doctrines is a premise upon which the father’s arguments are built. That premise must be rejected; as was made clear in Miller & Harrington:
100.The language of “issue estoppel” or “res judicata” is not appropriate because a 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.
Indeed, the same point had been made clear in Rice and Asplund itself (and, much later, in Newling and Newling; Mole (Applicant) at 76,467) and, later, enshrined in the Act; s 65D(2) provides:
(2) Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
As to the submission that her Honour adopted a “two options approach” and that such an approach, if adopted, was “erroneous”, this Court made clear in Miller & Harrington, that the “rule in Rice and Asplund” might be applied either “at a preliminary stage” or at another stage of parenting proceedings (see, for example, [72]). That conceptualisation of the “rule” is entirely consistent with what the High Court said in the unreported decision in Lowe, referred to earlier in these reasons. Mason CJ said (at p 11):
…It may be that in some cases the judge, in order to evaluate how strong the case is in relation to change of circumstances, needs to do little more than read the affidavits. He may need to have the benefit of cross-examination of some of the witnesses in order to evaluate how strong the case for change of circumstances appears to be. It seems to me that each case must be tailored to its own circumstances and an approach worked out which in the mind of the primary judge is best for that particular case.
(Emphasis added).
Mason CJ’s approach finds reflection in what Warnick J concluded in SPS & PLS (later approved by this court in both Marsden & Winch (2009) 42 Fam LR 1 and in Langmeil & Grange [2013] FamCAFC 31 at [46])). His Honour said:
48. In my view, reflection on the rule shows that:
(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”.
…
…
72.…While I have said that the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
73. There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
…
81.…[W]hen 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.
(Bold emphasis in original).
As his Honour’s judgment in that case makes clear, consistent with what Mason CJ said in Lowe, the “rule” can be addressed “as a preliminary matter” which “proves determinative of the application” or applied at “the end of a full hearing”. In either event, the underlying intention is the same and is grounded centrally in the best interests consideration just referred to: the rule’s application recognises the benefit of the finality of litigation but also recognises that considerations acutely relevant to a child’s best interests can change, including, for example, by reference to the child’s age and level of maturity. (See, for example, SPS at [58]-[60]).
Crucially, in light of the arguments advanced on behalf of the father, it should be observed that the statements of both Warnick J in SPS and Mason CJ in Lowe, make it clear that while the nature of the hearing undertaken at either stage will have the best interests of the relevant child/ren as its paramount consideration (s 60CA), the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case.
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders. Applied at the end of the hearing - because the hearing that precedes it is “a full hearing of a ‘custody’ dispute” (SPS at [65]) - a different question can be asked:
72.While … the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
73.There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
(Emphasis in original).
If the “rule” can be applied, as suggested by Mason CJ, based solely on the affidavit evidence or after “…the benefit of cross-examination of some of the witnesses”, or after a “full hearing”, the application of the rule must, almost axiomatically, involve differing weight being given to factors which inform it. Citing Warnick J in SPS at [81], this Court said in Miller & Harrington:
80.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.
81.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.
82.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.
Once it is understood that the “rule in Rice and Asplund” may, but is not required to be, considered as a preliminary issue, then it must be accepted that the weight to be attributed to factors relevant to the application of the “rule” can also vary. As Mason CJ makes plain, “…each case must be tailored to its own circumstances…”.
Her Honour determined to apply the “rule in Rice and Asplund” as a preliminary question. By reference to authority, her Honour was clearly entitled to do so. The father made his case for change. In the course of the determination of that application, a Family Report was obtained and received into evidence. Her Honour determined, as she was entitled to do in the exercise of her discretion, that reference to the father’s evidence and the evidence contained in the Family Report provided a sufficient foundation upon which to answer, at a preliminary stage, the “Rice and Asplund question”. No error is demonstrated in her Honour’s approach in doing so
Her Honour also determined to answer that question by, as Mason CJ put it, doing “little more than read the affidavits”. Again, her Honour was entitled to do so. There can be no failure of natural justice by reason alone of the adoption of either or both such courses. No other failure to accord natural justice is asserted or is apparent.
If error is to be established by reference to the manner in which her Honour conducted the proceedings, it must be argued that earlier decisions of this Court and the statements of Mason CJ are clearly wrong and ought not be followed. No such argument is made out. Alternatively, the father must contend that although it was open to her Honour to deal with the application in the manner that she did, error is otherwise apparent in the means by which her Honour did so. Again, no such contentions are made nor is it apparent to us that there could be any such contention/s.
Specifically, we reject the father’s submission that “…[the Family Consultant’s] recommendation alone rendered dismissal of the Appellant’s parenting application erroneous.” As we have said, it was for the trial Judge to determine the means by which the principle would be applied in the circumstances of the particular case and no error is established in the manner in which her Honour exercised her discretion in doing so.
Similarly, the submission that the father is prevented from later relying upon the Family Report has as its premise that the doctrines of res judicata or issue estoppel would apply. For the reasons we have earlier advanced, that premise cannot be accepted and the argument accordingly falls away.
The first ground also fails.
Was the order dismissing the father’s application a “parenting order”?
Some suggestions made by counsel for the father seemed to imply that the order dismissing the father’s application was a “parenting order” within the meaning of s 64B(1) of the Act. That submission, too, can be answered, in our view, by reference to what was said by Warnick J in SPS:
77.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.
78.Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467 [quoted earlier in these reasons]…
(Emphasis in original).
The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the relevant child’s best interests.
Her Honour did so. However, we have considerable doubts 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.
Conclusion
The appeal must be dismissed.
Costs
Counsel for the mother submitted that, in the event the appeal was unsuccessful, the father ought pay her costs of the appeal and counsel for the father conceded, properly as it seems to us, that the father could not oppose an order for costs in those circumstances.
The appeal has been wholly unsuccessful. In our view, there are circumstances justifying a departure from the presumption in s 117(1) of the Act. The husband should pay the wife’s costs of and incidental to the appeal as agreed or, failing agreement, as assessed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy and Austin JJ) delivered on 21 July 2014.
Associate:
Date: 21 July 2014
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