Family Court Of Australia
| REID & LYNCH | [2010] FamCAFC 184 |
| FAMILY LAW - APPEAL – PARENTING – Whether the Federal Magistrate properly considered the principles in Rice and Asplund (1979) FLC 90-725 – Where the orders sought to be set aside were made by consent – Whether it is relevant to consider the subjective intention of a party to consent orders – Detailed consideration of the relevant provisions for consent orders in the Family Law Rules 2004 (Cth) and the Federal Magistrate’s Court Rules 2001 (Cth) – Considerations of the various forms of estoppel including res judicata, issue estoppel and Anshun estoppel – Where the Federal Magistrate failed to consider what was said in Rice and Asplund – Where the Father was not aware of the family report – Where the family report was not a material undisclosed factor that would justify a hearing of all of the issues that were disposed of – Where the Federal Magistrate should not have relied upon the material that was not in evidence which included the family report – Appeal allowed FAMILY LAW - REDETERMINATION – Where all the evidence which the Father relies upon is before the Full Court – Where the Father has not established that there was a significant change in circumstances or that there was a material factor that was not then disclosed – Application dismissed FAMILY LAW - APPEAL – PARENTING – Appeal against the refusal to stay the orders subject of the first appeal – Where the parties had not filed the requisite material in order to proceed to final hearing – Where the final hearing could not commence before the pronouncement of judgment in relation to the appeals since the two appeals would then be rendered nugatory – Where the final hearing was vacated – Appeal allowed FAMILY LAW - COSTS – Reserved |
| Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Freeman and Freeman (1987) FLC 91-857 Inwood & Barnett [2008] FMCAfam 1446 Jackson v Goldsmith (1950) 81 CLR 446 King and Finneran (formerly King) (2001) FLC 93-079 Langford and Coleman (1993) FLC 92-346 Langham and Langham (1981) FLC 91-014 Marsden v Winch (2010) 42 Fam LR 1 Mazorski v Albright (2008) 37 Fam LR 518 McEnearney and McEnearney (1980) FLC 90-866 McManus v McManus [1969] 13 FLR 449 Miller & Harrington (2008) FLC 93-383 Newling and Newling; Mole (Applicant) (1987) FLC 91-856 Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589 Rice and Asplund (1979) FLC 90-725 SPS and PLS (2008) FLC 93-363 Zabaneh and Zabaneh (1986) FLC 91-766 |
| Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Reform Act 1995 (Cth) Matrimonial Causes Act 1959 (Cth) Family Law Rules 2004 (Cth) Federal Magistrates Court Rules 2001 (Cth) - r 23.01A(5)(a) Anthony Dickey, Family Law (Thomson Law, 5th ed, 2007) LexisNexis Butterworths, Australian Family Law, vol 1 (at Service 215) [s60CC.210] LexisNexis Butterworths, Halsbury’s Laws of Australia, vol 12 (at Service 302) [190-40] |
| APPELLANT: | MS REID |
| RESPONDENT: | MR LYNCH |
| INDEPENDENT CHILDREN’S LAWYER: | Loretta Terrill Family Lawyer |
| FILE NUMBER: | CAC | 111 | of | 2009 |
| APPEAL NUMBER: | EA EA | 57 70 | of of | 2010 2010 |
| DATE DELIVERED: | 17 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, O’Ryan & Strickland JJ |
| HEARING DATE: | 24 June 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 20 April 2010 & 11 June 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 553 & [2010] FMCAfam 617 |
Representation
| COUNSEL FOR THE APPELLANT: | Mr P Testart |
| SOLICITOR FOR THE APPELLANT: | Commins Hendriks, Solicitors |
| THE RESPONDENT: | Self-Represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms R Wheeler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Loretta Terrill Family Lawyer |
Orders
The appeal against the refusal of Federal Magistrate Neville on 20 April 2010 to dismiss the application filed by the Respondent on 10 February 2010 be allowed.
The order and notation made on 20 April 2010 be set aside.
The application filed on behalf of the Respondent on 10 February 2010 be dismissed.
Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeals by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other parties within 28 days of the date hereof.
Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other parties.
Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Region Appeal Registry of the Family Court of Australia and serving it on the other parties within a further 7 days.
Each party endorse on the cover sheet of any submissions filed pursuant to orders 4, 5 and 6, the date upon which a copy of that submission was served on the other parties.
IT IS NOTED that publication of this judgment under the pseudonym Reid & Lynch is approved 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 57 & EA 70 of 2010
File Number: CAC 111 of 2009
| MS REID |
Appellant
And
| MR LYNCH |
Respondent
Reasons For Judgment
Finn J
Introduction
On 24 June 2010 this Full Court heard the following two appeals:
·an appeal by Ms Reid (“the Mother”) against orders made by Neville FM on 20 April 2010 which, in effect, permitted Mr Lynch (“Mr Lynch”) to continue to litigate certain parenting issues relating to the child of the parties’ relationship (“the child X”) when such issues had been the subject of orders made by consent by the Federal Magistrate on 30 July 2009; and
·an appeal by the Mother against orders made by Neville FM on 11 June 2010 whereby his Honour refused to stay the orders which were the subject of the first appeal, and required the parenting issues between Mr Lynch and the Mother to proceed to a final hearing on 28 June 2010.
At the conclusion of the hearing on 24 June 2010, we made orders allowing the second appeal, but we reserved our reasons for that decision until the delivery of our decision in relation to the first appeal. Our decision in relation to the first appeal and our reasons for allowing the second appeal are the subject of these reasons for judgment.
In his very comprehensive reasons for judgment, O’Ryan J has concluded that the first appeal should be allowed and that Mr Lynch’s application to re-litigate the parenting issues between the parties should be dismissed. I agree with his Honour’s reasons for those conclusions and with the orders proposed. There are, however, some matters which I wish to emphasise.
The history of this case
The history of this case is usefully recorded in considerable detail by O’Ryan J in his reasons for judgment. It is unnecessary for me to repeat that history, although I consider it necessary to highlight the following matters.
There had been parenting proceedings between the parties in late 2008 and early 2009, which had resulted in:
·an order made by consent by the Local Court at W in south eastern New South Wales on 11 December 2008 providing for the child to live with the Mother and spend time with Mr Lynch, and noting that Mr Lynch did not consent to the Mother relocating with the child to C on the New South Wales north coast (from the W area); and
·an interim order made by Neville FM on 11 February 2009, again providing for the child to live with the Mother and spend defined time with Mr Lynch, and also for a reportable family conference together with a further mention of the matter on 1 April 2009.
The engrossments of both sets of orders indicate that Mr Lynch was legally represented at the time those orders were made.
The cover page of the family report which was prepared pursuant to Neville FM’s orders of 11 February 2009, states that it was released by his Honour to the parties and to their lawyers on 27 March 2009.
It appears from an engrossment of an order dated 1 April 2009, that when the matter came before Neville FM for mention on that day, Mr Lynch’s solicitor withdrew, Mr Lynch then appeared in person, and his Honour proceeded to order that “[a]ll outstanding applications be withdrawn and dismissed”.
On 15 July 2009 the Mother filed an application (together with a supporting affidavit) in the Federal Magistrates Court against both Mr Lynch and a Mr L (who is the father of two other children of the Mother), seeking an order that she be permitted to move all three children to the C area, and also orders as against Mr Lynch that she have sole parental responsibility for the child, X, and that Mr Lynch spend time with X as agreed between the parties. In her supporting affidavit the Mother asserted that Mr Lynch had had no contact with X since 29 February 2009.
On the same day (15 July 2009) the Mother’s solicitors wrote to Mr Lynch sending him copies of the Mother’s application and affidavit together with minutes of proposed orders. In their letter the solicitors asked Mr Lynch to consider whether he was prepared to consent to the proposed orders and, if so, to sign them in the presence of a witness and to return them. The solicitors’ letter also referred to the possibility of Mr Lynch consulting a solicitor.
Mr Lynch signed the minutes of proposed orders on 29 July 2009. Presumably, he then returned them to the Mother’s solicitor who submitted them to the Court. On 10 August 2009 the Mother’s solicitor wrote to Mr Lynch providing him with a copy of the orders which had been made by Neville FM on 30 July 2009. The orders were stated to be made by consent pursuant to rule 13.04 of the Federal Magistrates Court Rules 2001 (Cth). The minutes of orders as signed by both parties provided as follows:
The parties [Ms Reid] (Applicant Mother) and [Mr Lynch] (Second Respondent father), subject to such other matters as the Court may consider relevant, agree to the following Orders being made:
1. That the child [X] … born … January 2008 live with the Mother …
2. That the Mother have sole parental responsibility of [X].
3. That [Mr Lynch] … spend time with and communicate with [X] as agreed between [Mr Lynch] and [the Mother].
4. That the Mother be permitted to relocate with [X] from her present address to [C] or any area reasonably proximate to [C].
The circumstances in which the Federal Magistrate made these orders are unclear to me, in the sense of whether they were made in his Honour’s chambers or in open court, although I do not understand either party to contend that his Honour made the orders in the presence of the parties. But however that may be, and notwithstanding the somewhat unusual reference to the parties’ agreement being “subject to such other matters as the Court may consider relevant”, the orders must, in my opinion, be regarded as final orders; this is because of the clear and unqualified provision in the orders for the Mother to relocate to the C area.
On 10 February 2010 Mr Lynch filed an “application in a case”, and on 11 March 2010, an “initiating application”. In neither of these applications, did he expressly seek the setting aside or variation of the orders made by consent on 30 July 2010. Rather, he simply sought different orders to those of 30 July 2010, notably that the Mother’s application to relocate with the child to C be dismissed. He also sought defined time with the child X.
In his affidavit filed 10 February 2010 in support of the application filed that day, Mr Lynch stated that he had signed the minutes of proposed orders on 29 July 2009, but he gave no evidence concerning the circumstances surrounding that event, nor of any event after that date.
In his affidavit filed on 11 March 2010 in support of his application filed that day, Mr Lynch gave only the following limited evidence regarding the signing of the minutes of orders on 29 July 2009 and regarding events subsequent to that date:
127. On 29th July 2009, in the presence of my father … I signed documents headed “Minutes of Proposed Orders.” I was mentally struggling with issues relating to [X]. I did not receive legal advice prior to signing this document, I did not understand what these documents meant and it has only recently been brought to my attention what these documents actually meant.
128. In late November I was standing out the side of [a] Market Place, talking with a parent from school, when [the Mother] walked past with … and [X] in a stroller. I called out words to the effect, “There’s my son …”. [The Mother] did not make eye contact, [she] put her head down and kept walking.
…
My Change in Circumstances Requesting the Court Allow me Back into this Case
130. During the months of May leading up to the 29th of July I found myself in a state of deep depression.
131. I asked my father … to come over to discuss signing the “Minutes of Proposed Orders.” I discussed with him the psychological effect it was having on [A] and [B] [Mr [Lynch’s] children from another relationship]. I remember saying to him words to the effect, “I just don’t see a way clearly through this.” It was then that I signed the orders and asked my father to witness and dated the documents as is recorded by the court. My father was the only other person present. I had not sought legal council [sic] in relation to these documents headed, “Minutes of Proposed Orders.”
132. After this date I attended counselling sessions in an attempt to overcome my depression.
133. In early January I discussed with [my former wife] the possibility of re-entering the case to attain access to [X]. I discussed how I did not want to affect our children by re-entering the case, which could have deep psychological damage to both [A] and [B]. We discussed openly how well [A] and [B] were coping and agreed they were happy and strong enough to deal with whatever re-entering the case may bring. So the end result would be [A], [B] and I as a family, being able to spend time with and communicate with [X].
134. In the middle of January, [Mr L] contacted me saying words to the effect if I could write an affidavit in support of his case. I agreed to write him an affidavit.
…
136. As I began writing the affidavit, I became aware of the relationship with my son [X] and how paramount it was that I become a part of his life and how important it was that [A] and [B] again begin their relationship with [X] and that [the Mother] was not going to stop me any more from seeing my son.
In written submissions which he filed in response to Neville FM’s direction on 31 March 2010 for written submissions in relation to the application in this case of the decision in Rice & Asplund (1979) FLC 90-725 (that decision having been raised by the Mother’s solicitor in opposition to Mr Lynch’s applications to, in effect, re-open the proceedings between them), Mr Lynch again raised his “depressed state of mind” at the time when he signed the minutes of proposed orders.
In addition Mr Lynch claimed in his written submissions that he had not seen, and did not even know of, the family report released by Neville FM on 27 March 2009 until that report was referred to at further meetings with the report writer (which had followed orders made by Neville FM on 12 February 2010). Although Mr Lynch’s claim that he had not seen the first family report was a matter relied on by Neville FM in reaching his decision to allow Mr Lynch’s application to proceed to hearing, this claim by Mr Lynch has never been the subject of sworn evidence by him, nor has there been the opportunity for the Mother to challenge his claim in this regard.
The Federal Magistrate’s reasons for permitting Mr Lynch’s applications to proceed
O’Ryan J in his reasons for judgment has provided a very detailed analysis of Neville FM’s reasons (delivered on 20 April 2010) for permitting Mr Lynch’s applications filed 10 February 2010 and 11 March 2010 (which he referred to as the “Application”) to proceed to a final hearing. For my purposes, it is sufficient to set out the penultimate paragraph of Neville FM’s reasons where he provided a summary of his reasons for permitting Mr Lynch’s application to proceed:
33. For the reasons I have already indicated, I do not see that [Mr Lynch] should be prevented from proceeding with his application. Summarily stated, (i) on the facts and circumstances that were proposed at the time of signing the Consent Orders but which have not taken place (i.e. (a) that [Mr Lynch] spend time with [X] and (b) [the Mother] relocate to [C]), (ii) that as a matter of procedural fairness, for whatever reasons, [Mr Lynch] did not see a very significant piece of evidence, being the Family Report of Ms [H], before signing the Consent Orders in July 2009, (iii) [Mr Lynch’s] misunderstanding of the nature of the document he was signing, being “proposed” Minutes of Order’, and (iv) having regard to the extremely broad range of precedent of cases in which the principles of Rice & Asplund have been, in my view, quite readily satisfied, together with the broad discretion vested in the Court which has [X]’s best interests as the paramount consideration, [Mr Lynch’s] Application should proceed to trial.
The Mother’s challenge to the Federal Magistrate’s decision to permit Mr Lynch’s application to proceed
As O’Ryan J explains in his reasons for judgment, the grounds of appeal pursued before us on behalf of the Mother can be divided into the following two broad categories: first, what is described as “Rice & Asplund matters and Res Judicata” together with an issue about the adequacy of reasons; and secondly, procedural fairness issues.
In relation to the first of those categories, and again as O’Ryan J explains, s 65D(2) of the Family Law Act 1975 (Cth) (“the Act”) empowers a court to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order, but in exercising such a power the best interests of the child in question are the paramount consideration (as was recognised by Neville FM in paragraph 33 of his reasons).
However, as O’Ryan J also explains by reference to the various authorities which he cites, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment, unless the court can be satisfied that there is some changed circumstance which would justify such a serious step, or some fact which was not previously disclosed which would have been material in the making of the orders.
I would also in this context refer to the observations of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 at 118 (albeit made in the context of the admission of further evidence on appeals in parenting cases) that the “important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.”
In the present case, there simply was no changed circumstance between the end of July 2009 and the early months of 2010 when Mr Lynch sought to renew his application, and the matter was considered by Neville FM. Nor did Neville FM, as I understand his reasons, find such a change. Rather, and again as I understand his reasons, his Honour relied on Mr Lynch’s not having seen the first family report, which his Honour presumably regarded as being from Mr Lynch’s point of view, a previously undisclosed matter. His Honour can also be read as relying upon the fact that Mr Lynch did not understand the nature of the proposed orders document which he signed, and on the fact that the consent orders had not taken effect in that the Mother and child had not moved to C and the child had not seen Mr Lynch.
The difficulty about Mr Lynch’s claim that he had not seen the first family report is, as earlier indicated, that there was no sworn evidence from Mr Lynch to support that claim, and also no opportunity for the Mother to challenge that claim.
Mr Lynch’s claim that he did not understand the nature of the proposed consent orders is not a matter which can assist his case in seeking to overcome what can be broadly referred to as the Rice & Asplund principle. Rather, it is a matter that goes to what might be termed the integrity of the making of the consent orders. However, Mr Lynch has not sought to appeal the making of the consent orders. Nor has he made an application at first instance (at least expressly) to set aside those orders on the basis that he did not give a proper consent to those orders due to a lack of understanding of the purpose of the orders, or to a diminished capacity on account of a depressed state of mind.
I also do not consider that the fact that the provisions of the consent orders had not been implemented was a matter of any particular relevance to the decision as to whether or not Mr Lynch should effectively be bound by the orders.
I thus agree with O’Ryan J that there is substance in the appellant Mother’s challenge based on what can be described as the Rice & Asplund principle. I also agree with what his Honour has said concerning the merit in the Mother’s complaints based on procedural fairness issues.
Conclusion in relation to the first appeal
I agree with O’Ryan J that this Court should now dismiss Mr Lynch’s application (as contained in his applications filed on 10 February 2010 and 11 March 2010) on the basis that having regard to all the evidence which was before the Federal Magistrate and is now before us, Mr Lynch has not established that there was a significant change in circumstances subsequent to the orders of 30 July 2009, or that there was a material factor not then disclosed. It must be explained for the benefit of Mr Lynch that it is generally not possible for an appeal court to provide a litigant (even if he or she is self-represented) with the opportunity to repair shortcomings in the conduct of their case at first instance, which may emerge in the context of an appeal and which ultimately may result in the failure of his or her case.
Given the terms of the orders of 30 July 2009, there is, of course, nothing to prevent Mr Lynch applying for specific definitions of the time which he is to spend with the child.
Finally, before concluding in relation to the first appeal, I take the opportunity to sound a note of caution to judicial officers about the making of consent orders in cases where one or both parties are not legally represented, without first taking some steps to ensure that an unrepresented party understands the full import of the proposed orders which he or she has signed.
The second appeal
In relation to our reasons for allowing the second appeal, I have nothing to add to the reasons provided by O’Ryan J.
O’Ryan J
Introduction
Before us for hearing are appeals by Ms Reid (“the Mother”) against orders made by Federal Magistrate Neville on 20 April 2010 and 11 June 2010. The respondent to both appeals is Mr Lynch (“Mr Lynch”).
The appeals by the Mother arise out of a dispute between the Mother, Mr Lynch, and Mr L about the parenting of children. Mr Lynch and Mr L are the fathers of the children of the Mother.
The child concerned in these proceedings is the child of the relationship of the Mother and Mr Lynch. This child was born in January 2008. I shall refer to this child as “the child X”.
In the first appeal the Mother complained about the failure of the Federal Magistrate to dismiss an application by Mr Lynch for parenting orders having regard to what was said in Rice and Asplund (1979) FLC 90-725 per Full Court (Evatt CJ, with whom Pawley SJ and Fogarty J agreed).
In the second appeal the Mother complained about the dismissal by the Federal Magistrate of an application by the Mother for a stay of his orders the subject of the first appeal pending the determination of that appeal.
In the written outline of argument filed on behalf of the Mother it was submitted that both appeals:
raise issues of law of over-arching concern going beyond the mere interests of the parties in this proceeding. Those issues are:
a.what are the current limits of the application of the principle in Rice v Asplund?;
and
b.in what circumstances should a Court grant a stay of orders and directions for trial when an appeal is on foot in respect of a preliminary issue determined against an Appellant, whether on an interlocutory basis or a final basis?
The Mother appeared before us, and also before the Federal Magistrate, represented by counsel. Mr Lynch appeared before us, and also before the Federal Magistrate, without legal representation.
An independent children’s lawyer appeared on behalf of the child X at the hearing before the Federal Magistrate and also before us. I observe that before the Federal Magistrate, the independent children’s lawyer supported the application of the Mother that the application by Mr Lynch be dismissed. However, before us the independent children’s lawyer sought that the Mother’s appeal be dismissed.
There was considerable urgency in relation to the hearing of the two appeals. The hearing of both appeals was expedited given the imminence of the trial of applications for final parenting orders. The hearing before us was on Thursday, 24 June 2010 and the trial of the applications for final parenting orders was due to commence on Monday, 28 June 2010.
In relation to the second appeal, on 24 June 2010, we made the following orders and notations:
1. The appeal (EA 70 of 2010) against the orders made in the Federal Magistrates Court on 11 June 2010 be allowed.
2. The orders be set aside.
3. The final hearing of proceedings between the mother, [Ms Reid] and the father, [Mr Lynch], be stayed pending delivery of the Full Court’s judgment in the appeal against the order of 20 April 2010 (appeal EA 57 of 2010).
It is noted that reasons for these orders will be provided in the reserved judgment of the Full Court in relation to appeal EA 57 of 2010.
It is further noted that it is not intended that these orders should effect the final hearing of proceedings between the mother, [Ms Reid] and [Mr L]; that matter remains a matter for determination by the Federal Magistrates Court or agreement between the parties.
The orders were made on the basis that we would provide our reasons when we pronounced our judgment in relation to the first appeal.
We did not have the benefit of a comprehensive chronology of the background facts and nor was such information readily discoverable in the two reasons for judgment of the Federal Magistrate. Therefore, my understanding of the relevant background is gathered from the reasons for judgment, the affidavits included in the appeal books and the written outline of argument filed on behalf of the Mother. I shall, where relevant, set out some of the arguments of the Mother and the independent children’s lawyer in relation to certain background facts so as to obtain a better understanding of what has occurred. I also observe that in written submissions dated 16 April 2010, that were made by the independent children’s lawyer to the Federal Magistrate, there is a chronology of relevant events.
Background
Mr L was born in June 1966. Mr Lynch was born in October 1966. The Mother was born in September 1968.
The Mother and Mr L were in a de facto relationship between 1997 and 2001. They have two male children. The child Y was born in September 1997 and the child Z was born in June 2001.
On 17 May 2002 final parenting orders were made by consent in the Federal Magistrates Court in relation to the children Y and Z. The orders provided that the children reside with the Mother and that Mr L have contact with the children on days and times specified in the orders.
Prior to his relationship with the Mother, Mr Lynch had been previously married for approximately eight years. From that relationship, he has two female children, A born in March 1999 and B born in August 2003. Orders were made in the Local Court at W on 26 May 2006 in relation to the children A and B. The orders essentially provide for a shared care arrangement for these children between Mr Lynch and his former wife.
The Mother and Mr Lynch were in a relationship between February and August 2007. They married in July 2007 and separated in August 2007. The Mother and Mr Lynch were together for 23 days.
As I have already observed, Mr Lynch is the father of the child X who was born in January 2008. The proceedings before us concern this child.
In an affidavit sworn by Mr Lynch on 5 March 2010 he deposed that he did not see the child X between 11 January 2008 and 14 December 2008.
On 8 May 2008, in proceedings in the Local Court at W, in which Mr Lynch was the applicant and the Mother was the respondent, the following orders were made:
1. That the Court grant a stay of child support payments due by the applicant to the child support agency to [the Mother] for [the child X], pending the outcome of a paternity test.
2. That both parties do all things necessary to undertake paternity testing.
3. That leave be granted to relist this application before the court if either party requests.
4. That both parties contribute equally to the cost of the testing.
On 27 August 2008 in the Local Court at W the following orders were made:
1. Orders made by the Local Court [W] on 8 May 2008 relating to DNA testing to be strictly complied with both parties.
2. Within 5 working days of 19/8/08 both parties complete and sign the attached Application for DNA Parentage Testing and the Applicant will have delivered the executed document to the Respondent Solicitor no later then from 5 working days 19/8/08 this court date along with Bank Cheque made payable to [G Pty Ltd] for $412.50.
3. The Applicant is ordered to do all things necessary to comply with and to Ensure DNA testing by [G Pty Ltd] occurs.
4. Matter to be adjourned for 6 weeks period to ensure DNA testing occurs.
5. This matter is listed for compliance check on 30th September, 2008 at 9.30am.
The paternity tests were completed in early October 2008.
In an affidavit sworn on 14 July 2009 the Mother deposed that in October 2008 Mr Lynch filed an application in the Federal Magistrates Court seeking parenting orders.
On 25 October 2008 Mr S asked the Mother to marry him and she accepted his proposal. The Mother and Mr S propose to marry in November 2010. Mr S lives near C. As the Federal Magistrate observed at [5] of his reasons for judgment delivered 20 April 2010 the Mother, understandably, wishes to relocate to be with her future husband.
By letter dated 2 November 2008 Mr Lynch wrote to the Mother seeking the opportunity to spend time with the child X.
On 11 December 2008 in the Local Court at W the following orders were made by consent:
1. That the child [X] born [ … ] 2008 live with the mother.
1A. That the parties share responsibility for the child [X].
2. That the child [X] spend time with the father;
a)Each Sunday from 3.00pm to 5.00pm.
b)Christmas Day 2008 from 12 noon to 4.00pm.
c)On [the child X]’s birthday from 12 noon to 4.00pm.
3. That the father collect the child [X] from the mothers residence at the commencement of all contact periods and that the mother collect the child [X] from the fathers residence at the conclusion of all contact periods. (except for Christmas Day 2008 where the father will do all of the travelling).
4. That in the event the mother takes the child [X] on Holiday she is to provide the father with compensatory contact on the Saturdays prior to leaving on holidays. (Being the 10th & 17th January 2009 from 3.00pm to 5.00pm).
Notation
The mother is not re-locating to [C] during her holidays to [C] in the last two weeks of January 2009.
The father does not consent to the Mother relocating with the child [X] to [C].
The Mother contended that on 14 December 2008 Mr Lynch first spent time with the child X.
On 13 January 2009 an order was made that the proceedings in the Local Court be transferred to the Federal Magistrates Court.
In February 2009 the child X was diagnosed with epilepsy.
On 11 February 2009 interim parenting orders were made by the Federal Magistrate, which provided inter alia for Mr Lynch to spend time with the child X each Sunday for two hours from 12 noon to 2.00 pm, and that the parties attend a “reportable family conference” on 26 March 2009. The proceedings were adjourned to 1 April 2009.
At the time of the interim orders, Mr Lynch was represented by Messrs. Farrell Lusher Solicitors.
It was submitted on behalf of the Mother that Mr Lynch “did nothing between late February 2009 and early February 2010 to achieve some time with the child; he did not even make a proposal thereof to the [Mother]”.
I observe that in written submissions made by Mr Lynch to the Federal Magistrate in relation to an application of the Mother that the application by Mr Lynch be dismissed, Mr Lynch contended that during the period between late December 2008 and 1 March 2009 the Mother was in breach of orders “a total of 14 times”.
The parties attended a reportable family conference. Mr Lynch was interviewed on 26 March 2009. A “Report of Family Conference” (“the family report”) dated 27 March 2009 was then prepared and released to the parties, through their lawyers. A copy of the report was included in the appeal books and on the front page of the report, which is titled “Notice”, it is recorded that the report “is” released by the Court pursuant to r 23.01A(5)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“Federal Magistrates Court Rules”) to the parties and the parties’ lawyers. This rule provides that if a family report is prepared in accordance with an order made under the rule, the court may give copies of the report to each party, to the party’s lawyer, and to the child representative.
I observe that in the family report, the family consultant said:
15. The legacy of the disastrous relationship between [Mr Lynch] and [the Mother] and, separately, his mother’s intention to relocate geographically distant to [C] are two factors with grave implications for [X]’s relationship with his father. The prospects of [X] having a long term relationship bond with his father decline if he is not able to spend time with him in his early stage of his development when emotional attachments are being formed and deepened. Father and son need frequent time together for their relationship to develop. Furthermore, not developing a relationship with his father will impact, probably negatively, upon [X]’s developing masculine identity. If he relocates with his mother to [C], and she enters a long marriage with her fiancé [Mr S], it is probable that [X] would come to regard [Mr S] as his father figure. This however would not be a complete substitute for a relationship with his father, possibly compromising his self esteem in the long term.
I also observe that at paragraph 18 of the family report, the family consultant recommended that if the matter should proceed further it would be inevitable that a family report would be required and that the court may also require the assistance of an expert medical opinion about the medical status of the child X and the likely impact upon his capacity to manage future living arrangements.
The family consultant also said at paragraph 19 of the family report: “At this stage, it may be appropriate for the court to consider if [X]’s best interests would be served by regular professionally supervised contact with his father (and other paternal family) while the allegations (about parenting capacity and the child [X]’s safety and wellbeing) are examined further”.
On 27 March 2009 an order was made by the Federal Magistrate that the family report be released.
It is clear from the family report dated 27 March 2009 that, at that time, it was the Mother’s intention to relocate to C.
I observe that during the proceedings commenced by the Mother by her application filed on 15 July 2009 the family report was never put in evidence before the Federal Magistrate.
On 1 April 2009 Mr Lynch attended the Federal Magistrates Court and his solicitor withdrew from the proceedings. The Mother was represented by a lawyer. On 1 April 2009 an order was made by the Federal Magistrate that all outstanding applications be withdrawn and dismissed. Presumably, at that time, the Federal Magistrate was aware of the family report because he had made the order for its release to the parties and their lawyers.
There was an issue as to whether or not Mr Lynch ever saw the family report. In his reasons of 20 April 2010 the Federal Magistrate found at [33] that Mr Lynch “did not see a very significant piece of evidence, being the Family Report of [Ms B], before signing the Consent Orders in July 2009”.
On behalf of the Mother it was submitted that at paragraphs 121 to 139 inclusive of an affidavit Mr Lynch swore on 5 March 2010, Mr Lynch set out what purported to be a history of his circumstances and mental and emotional state, his involvement, or lack thereof in the proceeding, and his alleged change in circumstances. It was submitted, and I accept, that at no stage did Mr Lynch in this affidavit, or in any other sworn document, assert that he did not receive a copy of the family report.
On 8 June 2009 an application for divorce was filed on behalf of the Mother in the Federal Magistrates Court at Lismore. In the application the Mother set out her proposals for relocating with the children to C. This application for a divorce was referred to in the application filed on behalf of the Mother on 15 July 2009.
On 14 July 2009 the Mother and Mr Lynch were divorced.
On 15 July 2009 an application was filed by the Mother in which she sought orders in relation to all three children. The Mother sought that she be permitted to relocate with the children to C or any area reasonably proximate thereto. Both Mr L and Mr Lynch were named as respondents to the application.
On 14 July 2009 the Mother swore a very comprehensive affidavit in support of her application filed on 15 July 2009 and she included, at paragraphs 31 to 36, evidence of her proposed move to C.
I observe that in her affidavit of 14 July 2009 the Mother contended, and it was not disputed by Mr Lynch, that Mr Lynch had no contact with the child X since 29 February 2009.
By letter dated 15 July 2009 the solicitor for the Mother wrote to Mr Lynch and enclosed a copy of the application filed on 15 July 2009 and the Mother’s affidavit sworn on 14 July 2009. The solicitor also enclosed a copy of a minute of proposed orders. In the letter the solicitor advised: “Would you please carefully read the attached documents and consider whether you are prepared to consent to the Orders proposed between you and our client as set out on [sic] the Minutes of Proposed Orders”. The solicitor requested Mr Lynch, if he consented to the orders, to sign the minute and have his signature witnessed and then return the document. The solicitor also said: “Alternatively, if you intend consulting a solicitor in relation to the matter would you please have that solicitor communicate with us”.
On 29 July 2009 the Mother and Mr Lynch each signed the minute of proposed orders. I observe that attached to the minute is a printed document that provides detailed information as to the obligations under and consequences of parenting orders.
In a chronology of relevant events, which is included in submissions dated 16 April 2010 that were submitted to the Federal Magistrate on behalf of the Mother, it was said that Mr Lynch returned the signed minute of proposed orders to the Mother’s solicitor.
On 29 July 2009 the solicitor for the Mother wrote a letter to the Registry Manager of the Federal Magistrates Court in Canberra. The relevant contents of the letter are as follows:
The proceedings, so far as they relate to out client and the 2nd respondent, [Mr Lynch] have been settled.
We enclose Minutes of Proposed Orders signed by our client, the applicant mother and the 2nd respondent [Mr Lynch].
We ask that Orders be made in Chambers in accordance with the attached Minutes.
The proceedings then remain on foot as between our client and the 1st respondent [Mr L]. On that basis the matter should remain in the court list as it presently stands on Wednesday 16 September.
On 30 July 2009 Federal Magistrate Neville made the following orders:
1. Pursuant to rule 13.04 of the Federal Magistrates Court Rules 2001, Orders be made in accordance with the document titled, Minutes of Proposed Orders, dated 29 July 2009 and signed by the parties.
2. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
MINUTES OF PROPOSED ORDERS
The parties [the Mother] and [Mr Lynch] (Second Respondent father), subject to such other matters as the Court may consider relevant, agree to the following Orders being made:
1. That the child [X] born [ … ] 2008 live with the mother …
2. That the mother have sole parental responsibility of [the child X].
3. That the father [Mr Lynch] spend time with and communicate with [the child X] as agreed between [Mr Lynch] and [the Mother].
4. That the mother be permitted to relocate with [the child X] from her present address to [C] or any area reasonably proximate to [C].
In summary, the orders of 30 July 2009 resolved the longstanding controversy between the Mother and Mr Lynch regarding the Mother relocating with the child X to the C area.
The Federal Magistrate observed that prior to these orders being made, at various times, Mr Lynch had spent time with the child X, albeit somewhat limited time. There was an issue between Mr Lynch and the Mother about the paternity of the child X which was resolved in October 2008. As I have already observed, the Mother contended that Mr Lynch first spent time with the child X on 14 December 2008.
In the affidavit sworn by Mr Lynch on 5 March 2010 he contended in paragraph 127 that on 29 July 2009, in the presence of his father, he signed the document headed “minutes of proposed orders”. He contended that he was “mentally struggling with issues relating to [X]. I did not receive legal advice prior to signing this document, I did not understand what these documents meant and it has only recently been brought to my attention what these documents actually meant”.
It was submitted on behalf of the Mother that whether or not Mr Lynch had legal representation when he signed the minute of proposed orders on 29 July 2009 or when the orders were made on 30 July 2009, the wording of the consent orders signed by him was plain and unambiguous. Further, Mr Lynch is a teacher of considerable experience “and as such could not reasonably be expected not to have understood, or to have been unable, in a case of doubt, to obtain independent advice in respect of, the consent orders” (emphasis in original).
I observe that in his reasons of 20 April 2010 the Federal Magistrate observed:
7. At the time of entering the Consent Orders, [Mr Lynch] was (and remains) a self-represented litigant. At some brief stages of the proceedings he had been legally represented. He is [employed in the education industry].
On behalf of the Mother it was submitted that in “all the circumstances, the consent orders were, and are, plain, straightforward, easily understood orders which set out once and for all the parenting arrangements between” the Mother and Mr Lynch.
On behalf of the independent children’s lawyer it was submitted to us that the orders of 30 July 2009 were not clear and unambiguous for three reasons. First, they did not dismiss the proceedings between the Mother and Mr Lynch. Second, the orders did not state that they were final orders. Third, the orders provided “for the courts input” because in the introductory paragraph of the minute of proposed orders it was stated “subject to such other matters as the court may consider relevant”. I observe that these submissions were not made by the independent children’s lawyer to the Federal Magistrate.
On behalf of the Mother it was submitted that the minute of proposed orders was signed by Mr Lynch without there having been any direct communications whatsoever between the Mother and Mr Lynch, and this was not contested directly by Mr Lynch.
Prior to the making of the July 2009 final orders, Mr Lynch was provided with copies of the initiating application and the supporting affidavit of the Mother. It was submitted on behalf of the Mother, and I accept, that the essence of the proposed final orders submitted to Mr Lynch was the intention of the Mother to relocate from W to C. The proposed relocation was evident on the face of the application and supporting affidavit served on Mr Lynch and was specifically expressed in the minute of proposed orders signed by him. The Mother had also set out her proposal to relocate to C in her application for divorce. As well, Mr Lynch was aware for some considerable time that the Mother wanted to relocate to the C area and this was confirmed in the notations in the consent interim orders that were made in the Local Court in December 2008.
By reason of Mr Lynch signing the minute of proposed orders, there was no further material put on by the Mother, or on her behalf, in respect of issues between herself and Mr Lynch.
I observe that the file number given to the proceedings that were concluded by orders of 1 April 2009 was CAC 111 of 2009 being the same as the file number that appears to have been given to the proceedings that were commenced by application filed on behalf of the Mother on 15 July 2009.
By letter dated 10 August 2009 the solicitors for the Mother sent a sealed copy of the orders to Mr Lynch. During the hearing before us, Mr Lynch informed us that he received a sealed copy of the orders made on 30 July 2009.
On behalf of the Mother it was submitted that there is nothing in the affidavit evidence of Mr Lynch which might cause the court to query the bona fides of the Mother as to how the final orders of 30 July 2009 came into being. There was, for example, no suggestion by Mr Lynch that he was not provided with the relevant facts to allow him to properly assess the proposed orders nor was there any suggestion of duress, undue influence or like factors. It was submitted that even if there were, that would not entitle Mr Lynch to bring a fresh application contrary to the final orders of 30 July 2009. It was submitted that at its highest level it would allow Mr Lynch to bring an application to set aside those orders and only if successful in having the orders set aside would Mr Lynch then be allowed to bring a fresh initiating application.
On behalf of the Mother it was submitted that similarly Mr Lynch, in his affidavit sworn on 5 March 2010 at paragraph 130, deposed that at the time he signed the minutes of proposed orders leading to the 30 July 2009 orders he was “depressed”. It was submitted on behalf of the Mother that this assertion by Mr Lynch is inadmissible on the basis that he purports to provide an expert opinion where he lacks qualification as an expert. It was submitted on behalf of the independent children’s lawyer to the Federal Magistrate that there was no independent medical or psychological evidence as to Mr Lynch’s alleged depression. It was submitted on behalf of the Mother that even if there were admissible evidence to that effect it would only allow Mr Lynch to bring an application to set aside the 30 July 2009 orders and not, prior to that, bring a fresh initiating application contrary to the 30 July 2009 orders.
On 13 August 2009 Mr L filed a response to the Mother’s application in which he sought that the application be dismissed.
On 16 September 2009 the proceedings between the Mother and Mr L were listed for final hearing on 20 and 21 May 2010. An order was also made that a family conference be listed in Albury for 4 March 2010 (Transcript, 12 February 2010, p 17). Mr Lynch was no longer participating in proceedings as the proceedings between the Mother and Mr Lynch were finalised.
Mr Lynch contended that in mid-January 2010, Mr L contacted him and asked if he would write an affidavit in support of Mr L’s case and Mr Lynch agreed.
Mr Lynch contended that on 21 January 2010 he received correspondence “from the Family Law Courts requesting me to attend a sitting at [W] on 10th February 2010”. He gave evidence at paragraphs 135 to 136 of his affidavit sworn on 5 March 2010 about a conversation he then had with Mr L during which Mr L suggested to Mr Lynch that he “could make an application in a case … for Interim Orders to see your son” and that thereafter he “began writing the affidavit”.
On 10 February 2010 Mr Lynch filed an application in a case in which he sought, among other things, reinstatement of earlier orders that provided for him to spend time with the child X and to prevent the Mother from relocating to C. Mr Lynch sought other orders that I need not repeat. In other words, approximately six months after the final parenting orders were made, Mr Lynch sought a variation of those orders.
On 8 February 2010 an affidavit was sworn by Mr Lynch. Mr Lynch deposed at paragraph 2 that it was “a preliminary affidavit only in support of [his] application in a case, being for interim orders”. I observe that in the affidavit Mr Lynch gave evidence at paragraphs 20 to 73 about what he described as the parenting arrangements before 15 July 2009. At paragraph 74, Mr Lynch deposed that he signed the minute of proposed orders on 29 July 2009 but gave no evidence in relation to the circumstances surrounding his signing the minute and the making of the orders on 30 July 2009. Mr Lynch also gave no evidence about what happened on or after 30 July 2009.
The Mother gave evidence at paragraph 8 in an affidavit sworn by her on 12 April 2010 that since 29 February 2009 she had “not spoken with [Mr Lynch], I have not seen him, we have not emailed each other, we have not communicated via telephone, text or in any other form. He has not caused anyone to communicate with me on his behalf”.
On behalf of the Mother it was submitted that Mr Lynch did not contact the Mother with regard to any parenting or any other matters until after he attended the Federal Magistrates Court on 10 February 2010, ostensibly, as he asserted at a directions hearing on 18 June 2010, because he received a letter requesting him to do so. It was submitted that at court on that day, Mr Lynch asserted he wished to seek orders effectively reversing the consent orders signed by him and made some six months before.
The matter came before the Federal Magistrate on 10 February 2010 and on that day there was an appearance by Mr L and also Mr Lynch. The Mother was represented by her solicitor. I observe that during the hearing Mr L informed the Federal Magistrate that he was assisting Mr Lynch (Transcript, 10 February 2010, p 4). The Federal Magistrate adjourned the proceedings to 12 February 2010.
On behalf of the Mother it was submitted that the transcript of the proceedings before the Federal Magistrate on 10 February 2010 shows that at the time of that hearing, Mr Lynch had had discussions with the writer of the family report, thereby calling into some doubt the unsworn assertion of Mr Lynch that he had not received that report (Transcript, 10 February 2010, pp 6 to 7). It was submitted that this was never explored by the Federal Magistrate, and nor was there any opportunity given to the Mother to test that evidence, by reason of the manner in which the Federal Magistrate disposed of the Rice and Asplund point.
During the hearing on 10 February 2010, in discussion, Mr Lynch stated that the Mother “has broken orders 14 times, and has denied me access to my son” (Transcript, 10 February 2010, p 7). On behalf of the Mother it was submitted that the assertion of Mr Lynch was allowed to pass without comment or further enquiry, and the Mother was not afforded the opportunity to contest what Mr Lynch contended. It was submitted that in this regard, it is to be borne in mind that the only sworn evidence before the court was to the effect that there had been no communication between the Mother and Mr Lynch between the making of the July 2009 orders and 10 February 2010. It follows that Mr Lynch could only have been referring to what he contended occurred before the final orders were made. In fact, it will be seen shortly that no request had been made by Mr Lynch since at least April 2009 to spend time with the child.
The proceedings were before the Federal Magistrate again on 12 February 2010 and on that occasion there was an appearance by Mr L and Mr Lynch and the solicitor for the Mother.
On 12 February 2010, on behalf of the Mother, her solicitor submitted that the application of Mr Lynch should be dismissed and reference was made to Rice and Asplund (Transcript, 12 February 2010, p 11). The solicitor for the Mother outlined the basis of the application (Transcript, 12 February 2010, pp 11 to 12). In his reasons of 20 April 2010 the Federal Magistrate observed at [14] that a preliminary issue was raised on behalf of the Mother, namely “whether the principles set out in the case of Rice & Asplund, and as those principles have been articulated in more recent cases, [prevented] [Mr Lynch]’s Application proceeding” (footnotes omitted).
I have had the opportunity to obtain from the relevant file of the Federal Magistrates Court copies of various orders made from time to time and I observe that on the file is a copy of orders made by the Federal Magistrate on 12 February 2010 which are as follows:
1. The Initiating Application filed on 15 July 2010 [sic] and the Response filed on 13 August 2009 be transferred from file CAC 111/2009 to CAC 257 of 2010.
2. Order 1 of the Orders of 16 September 2010 [sic] be varied to the extent that in addition to [the Mother], Ms [sic] [Mr L] and their children attending upon the Family Consultant in Albury on 4 March 2010 for a reportable family conference; [Mr Lynch] and [the child X] born … are also to attend that conference.
3. Within 21 days, the Second Respondent Father is to file and serve any material in response to the Applicant Mother’s application to relocate filed on 15 July 2010 [sic].
4. The Applicant mother’s oral application to dismiss the Applications in a Case filed by each the Respondent father [sic] be stood over to a date to be advised, after the determination of the mother’s application to relocate [with the child X].
I note that included in the orders of 12 February 2010 is an order that is said to have been made by the Federal Magistrate in Chambers on 24 February 2010 in which it is ordered: “The Application filed by [the Mother] on 15 July 2010 [sic] be transferred to file CAC 257/2010”. This was already included in order 1 made on 12 February 2010.
Further, I observe that no explanation was ever given by the Federal Magistrate as to why on 12 February 2009 he made orders in relation to the application filed by the Mother on 15 July 2009 as the proceedings commenced by that application in relation to the child X were finally disposed of on 30 July 2009.
I also observe that the transcript of what happened on 12 February 2010 reveals that the Federal Magistrate said that he stood over any applications that had been filed or made orally on that day, including an application to dismiss any of the proceedings to a date to be advised but after the filing of any further material. His Honour also said that “we are all heading for 20 and 21 May” (Transcript, 12 February 2010, p 20).
I also observe that during discussion on 12 February 2010, the Federal Magistrate said that he proposed “for the court to contact the family consultant to advise that all the parties listed in what might be described as the [Mr L] proceedings, which includes [Mr Lynch], that they will all attend the family conference on 4 March in Albury at 9.15, which also includes [X]” (Transcript, 12 February 2010, pp 18 to 19). His Honour gave no reasons for why he ordered that the family consultant should be involved at that time in the proceedings between the Mother and Mr Lynch. His Honour was also aware that the Mother was seeking that the application by Mr Lynch be dismissed.
By email dated 15 February 2010 Mr Lynch wrote to the solicitor for the Mother, referring to the final orders and proposing certain arrangements to spend time with the child X. This was the first correspondence from Mr Lynch since at least April 2009 in which any request was made to see the child X. By letter dated 19 February 2010 the solicitors for the Mother wrote to Mr Lynch indicating the Mother’s position in relation to immediate contact between Mr Lynch and the child X and seeking certain particulars from Mr Lynch. The concerns raised by the Mother included the “perception there is a risk of abuse and an unacceptable risk to [the child X] in [Mr Lynch] having unsupervised contact with him.”
An examination of the file of the Federal Magistrates Court reveals that on 24 February 2010 the following orders were made:
1. The Application in a Case filed on 20 January 2010 and the Application in a Case filed 3 February 2010 by [Mr L] be transferred to CAC 257 of 2010.
2. [Mr L] be removed as a party to the pending applications on file CAC 111/2009.
3. The filing fees for the Application in a Case referred to in Order 2 be waived.
4. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children [sic] [the child X] born [ … ] 2008.
5. The Legal Aid Office, New South Wales, is requested to make arrangements as soon as practicable for appropriate representation for the child [X].
6. Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
7. Each party is to make available to Legal Aid NSW within 7 days copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports (if applicable, including the Children and Parents Issues Assessment).
I observe that the order that appears to have been made in Chambers on 24 February 2010 in relation to the transfer to file CAC 257/2010 of the application filed by the Mother on 15 July 2009, which is included in the orders of 12 February 2010, does not appear in the above orders made on 24 February 2010.
On 4 March 2010 the family consultant who prepared the family report dated 27 March 2009 conducted interviews at Albury with the Mother, Mr Lynch, Mr L and the children Y, Z and X. The family consultant also conducted observations including of the Mother and Mr S and the three children.
On 5 March 2010 an affidavit was sworn by Mr Lynch in which he stated at paragraph 2 that it was “a preliminary affidavit only in support of [his] application being for interim and final orders”. I observe that in this affidavit Mr Lynch gave extensive evidence at paragraphs 18 to 127 about his relationship with the Mother including parenting arrangements between 1986 and July 2009. I observe that with the exception of an occasion in November 2009 (at paragraph 128) Mr Lynch gave no evidence about what happened after 30 July 2009.
On behalf of the Mother it was submitted that Mr Lynch at paragraphs 118 and 119 of his affidavit sworn on 5 March 2010 deposed that he attended for an interview on 26 March 2009 in respect of the “Report of Family Conference” dated 27 March 2009. Further, at paragraph 120 Mr Lynch deposed to having withdrawn “all outstanding applications in the Federal Magistrates Court between [the Mother and himself]”. In the same paragraph, Mr Lynch deposed that he “had a number of concerns regarding not being allowed to have access with [the child X] as per court orders”.
At paragraphs 121 to 139 of his affidavit sworn on 5 March 2010, Mr Lynch set out what purported to be a history of his circumstances and mental and emotional state, his involvement, or lack thereof, in the proceedings, and his alleged change in circumstances.
It was submitted on behalf of the Mother, and I accept, that at no stage in his extensive affidavit of 5 March 2010 did Mr Lynch there, or in any other sworn document, assert that he did not receive a copy of the family report dated 27 March 2009.
As I have already observed, the orders of 30 July 2009 provided that Mr Lynch spend time with and communicate with the child X as agreed between Mr Lynch and the Mother. However, I observe that in his affidavits sworn on 8 February 2010 and 5 March 2010 Mr Lynch gave no evidence of any attempt by him, directly or indirectly, between April 2009 and February 2010 to communicate in any form with the Mother or make a request to spend time with the child X. Counsel for the Mother submitted to us, and I accept, that there was “not one word of evidence by [Mr Lynch] … that he made any attempt to obtain any agreement from [the Mother] about time with [X]”.
On behalf of the Mother it was submitted that it is common ground, supported by the two affidavits of Mr Lynch being his affidavit sworn on 8 February 2010 and his affidavit sworn on 5 March 2010 and supported by the affidavit of the Mother sworn on 12 April 2010, that absolutely nothing relevant to the proceeding, so far as the Mother and Mr Lynch were concerned, happened from the time the final orders were made on 30 July 2009 until 10 February 2010. It was submitted that at that time Mr Lynch filed his application in a case which, in effect, sought the same orders, but in the wrong form, as now sought in his initiating application. It was submitted that there was no communication of any nature between the Mother and Mr Lynch and there was no correspondence between them. There was also no correspondence between the solicitor for Mr Lynch and the solicitor for the Mother. It was submitted that there was no time spent by Mr Lynch with the child X. It was submitted that there was no request by Mr Lynch made to the Mother or the Mother’s solicitor to spend time with the child X. It was submitted that, in short, there was no event at all let alone an event that would satisfy the threshold test set out in Rice and Asplund.
In the second family report dated 10 March 2010 at paragraph 17 the family consultant said:
Due to the many competing assertions made by [the Mother], [Mr L] and [Mr Lynch], which could not be dismissed readily in the context of the family conference, it was not possible to reach a conclusion or to make recommendations to assist the Court in its determination of the best outcome for the children regarding the proposed relocation …
In the second family report the Family Consultant also said:
20. A full family report may not add much more to assist the Court. Rather, the best outcome may arise from a stringent examination of the adult accounts of the extent to which the children’s needs have been met to date and their relationships with their parents supported. The Court may wish to hear from [the Mother]’s fiancé, [Mr S], directly and to consider more closely the degree to which [the Mother]’s relationship with [Mr S] would assist the proposed relocation.
I have already observed that in the first family report, that was prepared for use in the proceedings between the Mother and Mr Lynch, the family consultant had said that it would be inevitable that a family report would be required and that the court may also require the assistance of expert medical opinion about the medical status of the child X and the likely impact upon his capacity to manage future living arrangements. There was no explanation in the second family report as to why the family consultant had changed her mind about what was required in the proceedings between the Mother and Mr Lynch.
In written submissions that Mr Lynch filed in the Federal Magistrates Court pursuant to the order made by the Federal Magistrate on 31 March 2010, Mr Lynch contended that he first learnt of the March 2009 family report during a conversation he had with the family consultant after the family conference in early March 2010. These contentions were never verified by Mr Lynch in an affidavit or other sworn statement.
On 11 March 2010 Mr Lynch filed an application in which he sought both final and interim orders. Mr Lynch sought to prevent the Mother from relocating the child X to C and to define the time he spends with the child. Mr Lynch sought other orders that I need not repeat. However, in passing, I observe that Mr Lynch set out the orders he would seek in relation to specified time that he would spend with the child in the event that the Mother was able to relocate the child. I also observe that Mr Lynch sought an interim order that the “parties share responsibility for the child” but sought no final order for shared parental responsibility. This is understandable given what the family consultant said in the March 2009 family report about the “exceedingly poor” relationship of the Mother and Mr Lynch.
On 31 March 2010 the Federal Magistrate made the following orders:
1. All parties are to file and serve written submissions in relation to the application of Rice v Asplund to this matter by close of business on 16 April 2010.
2. If after reviewing the submissions in Chambers it is determined that the matter requires court time, the matter will be listed for interim hearing on 23 April 2010 at 4:15pm in Canberra.
AND IT IS NOTED that the parties will be notified by close of business 19 April 2010 in relation to the necessity of an interim hearing.
In his reasons of 20 April 2010 the Federal Magistrate observed at [15] that he had “the benefit of written submissions from the applicant, [the Mother], who is represented, from [Mr Lynch] who is a self-represented litigant, and also detailed written submissions from the Independent Children’s Lawyer, Ms Terrill”.
I observe that in his reasons of 11 June 2010 the Federal Magistrate said:
10. It was essentially as a result of [the solicitor for the Mother]’s concerns on behalf of his client in this regard that the so-called Rice & Asplund issue was agreed to be considered by written submissions at the earliest possible time. Orders were made on 31st March which provided for a timetable for written submissions from both parties and the independent children's lawyer in relation to the determination of the Rice & Asplund issue. There was also a notation to the effect that the matter would be determined, to speak somewhat colloquially, `on the papers.’
11. The notation confirmed that the parties would be advised if an interim hearing was considered necessary. Submissions were received from both parties and from the independent children’s lawyer. As well, a letter was sent from my Chambers, dated 8th April, to all parties and the ICL confirming the orders made on 31st March. From a draft of the Appeal Index which has been forwarded to my Chambers that that letter has not been included in the materials to go before the Full Court. Again, I leave such matters to the Appeals Registry.
In relation to when Mr Lynch first received a copy of the March 2009 family report, in the written submissions that Mr Lynch filed in the Federal Magistrates Court pursuant to the order made by the Federal Magistrate on 31 March 2010, he said: “I swear that I did not receive this family report or have ever seen it until 9 April 2010”. These contentions were never verified by Mr Lynch in an affidavit or other sworn statement.
On 12 April 2010 an affidavit was sworn by the Mother. Written submissions dated 16 April 2010 were filed on behalf of the Mother.
Written submissions, as discussed at paragraph 134 above, comprising six pages were filed by Mr Lynch. It is not known on what date these submissions were prepared or filed. I observe that Mr Lynch annexed to his written submissions copies of a number of documents including an affidavit from his father, an affidavit from a school teacher, an affidavit from his first wife, an affidavit from Mr L and the family report of 27 March 2009.
I observe that in his written submissions, Mr Lynch contended that there were many factors that led to a change in circumstances that he felt needed to be considered but that “of particular concern to me is a family report that was not disclosed during the time of proceedings before the final orders were made”. On a number of occasions in the written submissions Mr Lynch contended that he had never seen the family report until 9 April 2010. Mr Lynch also quoted extensively from the first family report. I also observe that Mr Lynch referred to the contents of the family report dated 9 March 2010 prepared by the same family consultant.
I observe that in his written submissions, Mr Lynch contended that “it has been now 14 months since I had been allowed to see my son”. In other words, Mr Lynch was contending that he had not seen the child X since perhaps late 2008. Mr Lynch also contended that the Mother had “refused any form of access to [X]”. However, it was an admission by Mr Lynch of the fact, as contended for by the Mother, that Mr Lynch had not spent any time with the child X.
Written submissions dated 16 April 2010 were filed on behalf of the independent children’s lawyer. The Independent Children’s Lawyer submitted that Mr Lynch had not established that there had been a sufficient change in circumstances since the making of the orders on 30 July 2009 “to warrant a reassessment of the current parenting orders”. However, I observe that the independent children’s lawyer also said that “the overriding consideration, as always, is the best interest of the child. The independent children’s lawyer has concerns regarding [X]’s best interests in the light of the opinion and recommendations of the family consultant set out at paragraph 15 of her report dated 27 March 2009 in relation to the bests interests of [X]’s welfare as summarised above”.
On behalf of the Mother it was submitted that all parties filed written submissions and that the written submissions of the independent children’s lawyer and the Mother contained numerous references to the previously filed affidavit material of both the Mother and Mr Lynch “and confined themselves to submissions based on the assertions of fact contained therein”.
On behalf of the Mother it was submitted, and I accept, that the written submissions of Mr Lynch were discursive, and contained numerous assertions of fact which were not contained in any affidavit material, whether filed on behalf of Mr Lynch or otherwise. It was submitted that the key to this appeal is the assertion, made in various forms throughout the submissions, to the effect that: “I swear that I did not receive this family report [i.e. the "Report of Family Conference" dated 27 March 2009] or have ever seen it [sic] until 9 April 2010” (emphasis in original).
On 20 April 2010 the Federal Magistrate delivered by telephone conference facility ex tempore reasons for judgment and made the following order and notation:
1. The matter be set down for final hearing to be heard as a special fixture in [W] on a date to be advised.
AND IT IS NOTED THAT: The principle enunciated in Rice v Asplund and subsequent cases is not applicable to [Mr Lynch]’s application for parenting Orders.
On behalf of the Mother it was submitted that the orders “are equivocal, in that the only order is that “the matter [sic] be set down for final hearing as a special fixture in [W] on a date to be advised” and there was a notation that “[t]he principle enunciated in Rice and Asplund and subsequent cases is not applicable to [Mr Lynch]'s application for parenting orders” (emphasis in original).
In his reasons of 11 June 2010 in the stay proceedings the Federal Magistrate said at [7]:
To speak formally, the only Order actually made on that day was for the matter to be set down for final hearing and to be heard as a special fixture in [W] on a date to be advised. There is a notation regarding the Rice & Asplund issue. It would be inappropriate, it seems to me, to comment on appealing an Order that seeks only to list a matter on a final basis, at significant inconvenience to the Court, as a special fixture in [W]. I leave such matters to the Full Court regarding orders, notations, and reasons.
It was submitted on behalf of the Mother that the Federal Magistrate in the preceding paragraph commented on the orders made by him. It was submitted that “[t]he comment made indicates … [that the Federal Magistrate] deliberately drafted the orders in the manner in which he did in order to prejudice the [Mother] in the conduct of this Appeal”. It was submitted that:
Specifically the making of a comment by a judicial officer of a criticism under cover of using the words “[i]t would be inappropriate, it seems to me, to comment on appealing an Order that seeks only to list a matter on a final basis, at significant inconvenience to the Court, as a special fixture in [W]. I leave such matters to the Full Court regarding orders, notations, and reasons”, is … an indication that the Rice v Asplund point was decided on the basis of reasons not appearing in [the Federal Magistrate]’s Reasons thereof. (emphasis in original)
It was also submitted on behalf of the Mother that the transcript of the “Telephone Conference” during which ex tempore reasons were delivered reveals the informal, casual nature of the reasons delivered by [the Federal Magistrate]”. The Federal Magistrate said (Transcript, 20 April 2010, p 2):
I though[t], given the nature of the matter, that I should, at least, in open court and, therefore, obviously, so that everyone could hear, to make some observations that they might technically be described as reasons. Unless required, I don't propose making any formal orders one way or the other, but I'll hear any comments or submissions in that regard after I’ve made my remarks in open court.
I observe that in his reasons of 11 June 2010 the Federal Magistrate also said:
12. As it happened, the matter was moved from 23rd April to 20th April, when reasons were delivered. Following delivery of the reasons, there was discussion at some little length with the parties and the independent children's lawyer regarding preparation of the hearing, including how many days would be required to deal with both matters. It seemed to be agreed that, whatever the difficulties in conducting parallel, or concurrent, trials, because the parties and matters are so intertwined, the most appropriate course was to hear both matters together. I confirm that on that occasion, following delivery of reasons, albeit by telephone, [Mr Lynch] attended, as did Mr Webb (on behalf of [the Mother]), and Mrs Terrill, the independent children’s lawyer.
On 29 April 2010 orders were made by the Federal Magistrate in chambers, in the absence of the parties, listing the proceedings between the Mother and Mr L and the Mother and Mr Lynch for hearing for four days in W, commencing on 28 June 2010. In his reasons of 11 June 2010 the Federal Magistrate said at [13] that the “matters are listed, as previously notified, as special fixtures”.
On 29 April 2010 the Federal Magistrate made the following orders:
1. The matter be listed for pre-hearing directions and compliance check on 16 June 2010 at 10:30am in the [W] telephone callover.
2. The matter be listed for final hearing on 28 June, 29 June, 30 June and 1 July 2010 at 10:00am in [W] to be heard simultaneously with matter number CAC 257/2010.
3. Evidence in chief at the hearing be by way of affidavit. Oral evidence in chief will only be permitted by leave. Affidavits must comply with Divisions 2.1 and 15.4 of the Federal Magistrates Court Rules 2001.
4. The mother file and serve any affidavits upon which she intends to rely by close of business on 31 May 2010.
5. The father file and serve any affidavits upon which he intends to rely by close of business on 14 June 2010.
6. The mother file and serve any affidavits in reply by close of business on 21 June 2010.
7. Each party file and serve an outline of submissions, a chronology, a list of affidavits relied upon, and a minute of orders sought, if those orders are different from those sought in that party’s application or response, by close of business on 21 June 2010. It is requested that a copy of the Orders Sought are emailed to [address omitted] prior to the commencement of the hearing.
8. The Independent Children’s Lawyer will prepare the chronology above, to be settled with the parties, by 21 June 2010.
9. Subpoenas be returnable no later than 21 June 2010.
10. The applicant either pay the hearing fee or obtain an exemption with respect to that fee by 21 June 2010.
We were informed that these orders have not been complied with and counsel for the Mother told us that the Mother’s trial affidavit was still being prepared.
On behalf of the Mother it was submitted that the procedural orders made in chambers effectively consolidated the respective proceedings concerning the two fathers, and set the proceedings down for final hearing on 28, 29, 30 June and 1 July 2010 at W.
On 13 May 2010 a notice of appeal was filed on behalf of the Mother in relation to the order made on 20 April 2010.
On 14 May 2010 an application was filed on behalf of the Mother in which she sought that compliance with the orders made on 29 April 2010 be stayed pending the outcome of her appeal against the orders of 20 April 2010 and further that the trial dates of 28 June 2010 to 1 July 2010 be vacated. This application was supported by an affidavit sworn by the Mother’s solicitor, Peter Webb, on 10 May 2010.
On 27 May 2010 a response to an application in a case was filed on behalf of Mr Lynch in which he sought that the application filed on behalf of the Mother on 14 May 2010 be dismissed. He also sought interim parenting orders. On 25 May 2010 an affidavit was sworn by Mr Lynch. In this affidavit he largely dealt with matters relevant to the parenting orders which he sought in his application.
On 8 June 2010 the Federal Magistrate dealt with the application for a stay filed on behalf of the Mother on 14 May 2010.
I observe that during the hearing before the Federal Magistrate on 8 June 2010, counsel for the Mother informed his Honour that all affidavits the Mother proposed to rely upon in the proceedings between her and Mr L had been filed, however, no material had been filed in relation to the proceedings between the Mother and Mr Lynch. Counsel for the Mother informed his Honour that the solicitor for the Mother needed more time in order to prepare the material, including medical evidence required and also subpoena material. Counsel for the Mother informed his Honour that even if the application for a stay was not successful the hearing could not proceed on 28 June 2010 “because [the solicitor for the Mother] simply could not be ready”. It was submitted that the solicitor for the Mother “could not be ready before” 28 June 2010 (Transcript, 8 June 2010, p 8). It will be recalled that in the first family report the family consultant had said that the court may require the assistance of an expert medical opinion about the medical status of the child X and the likely impact upon his capacity to manage future living arrangements.
During discussion with the Federal Magistrate on 8 June 2010, counsel for the Mother pointed out (Transcript, 8 June 2010, p 9):
the only party that suffers any detriment if the hearing is delayed is the mother because the hearing of her application to relocate to [C] is delayed. Obviously, in the meantime, she is not able to relocate to [C]. As I understand it, [Mr Lynch] is about to start contact with [X] and so there will be contact happening for him. It was never part of the mother’s case, in any event, that [Mr Lynch] should not be able to make an application for specificity of contact orders. It was in relation to the order that he agreed allowing the mother to relocate to [C] that the key argument is about.
I observe that in Marsden v Winch, the Full Court at [18] agreed with the observation of Warnick J in SPS and PLS that the application of the rule in Rice and Asplund is closely connected with the nature and degree of change sought to the earlier order. In SPS and PLS Warnick J said at 82,455 that “[t]he rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes”.
First area of complaint - Discussion
It is convenient to commence consideration of the first broad area of complaint by looking at what was submitted on behalf of the independent children’s lawyer. I do so because it assists in understanding the error the Mother complains the Federal Magistrate made.
In the written outline of argument of the independent children’s lawyer it was submitted that the Federal Magistrate was concerned that Mr Lynch had not had contact with the child X, and was also concerned that there had been no testing of the merits or otherwise of the objects and principles set out in s 60B of the Act with respect to the child. It was submitted that his Honour was concerned as to the legislative requirements in Pt VII of the Act “regarding the meaningful relationship or lack of it or capacity of [the Mother] to promote it, of [the child X] with [Mr Lynch]”. It was submitted that his Honour was also concerned that Mr Lynch claimed he had not seen the March 2009 family report. It was submitted that the Federal Magistrate took the view that the child X’s best interests were best served, in the light of the above circumstances, by considering afresh how his interests were best served and that a preliminary decision not to allow Mr Lynch to proceed was not in the child’s best interest.
It was submitted on behalf of the independent children’s lawyer that a number of circumstances were before the Federal Magistrate that troubled him so that the preliminary point was enmeshed in substantive issues affecting or potentially affecting the child X’s welfare. It was submitted that these circumstances included the determination of the Mother to move to C and the March 2009 family report unseen by Mr Lynch that suggested that the court consider if the child’s interests would be served by regular supervised contact and the statement by the Mother to the family consultant that she proposed no access whatsoever between Mr Lynch and the child. It was submitted that in relation to these matters his Honour exercised his discretion judicially based on relevant matters affecting the best interests of the child X.
In the written outline of argument of the independent children’s lawyer it was also said that the independent children’s lawyer is of the view that the child X’s best interests have not been fully explored by the court. It was submitted that this “was a matter paramount to his Honour and properly so. The relocation cannot be considered in isolation as a separate issue to the question of [Mr Lynch]’s contact with [the child X], particularly in light of the [Mother]’s intention stated to [the family consultant] that [Mr Lynch] have no contact at all with [the child X]”.
I observe that nothing was said in the submissions of the independent children’s lawyer that described or identified, in any way, any change in circumstances since the original judgment of July 2009. The only factor that it was contended was not disclosed at the time of judgment was the assertion of Mr Lynch that he was not aware of the March 2009 family report.
On behalf of the Mother it was submitted, and I agree, that the essence of the final orders of 30 July 2009 was that Mr Lynch agreed to an order allowing the Mother to relocate the child X from W to C. I also accept that the essence of the application Mr Lynch now seeks to bring is to stop the Mother from relocating the child X.
It was submitted on behalf of the Mother, and I accept, that it is clear from the affidavit material filed on behalf of both parties prior to final orders being made on 30 July 2009, and the March 2009 family report, that the issues of parental responsibility, residence, relocation, and time to be spent by Mr Lynch with the child X, were all before the court at the time the final orders were made. Moreover, they were before the court on precisely the same sub-stratum of facts as is now sought to be agitated by Mr Lynch. It was submitted that Mr Lynch had available, at the time the final orders were made, each and every one of the claims available to him to raise as he did in his most recent application and affidavits, but he did not do so.
As I have already observed, in his affidavit sworn on 8 February 2010 Mr Lynch gave no evidence about what happened on or after 30 July 2009. I have also observed that in his affidavit sworn on 5 March 2010 Mr Lynch gave extensive evidence about his relationship with the Mother including parenting arrangements between 1986 and July 2009 and that with the exception of some evidence about an occasion in November 2009 Mr Lynch gave no evidence about what happened after 30 July 2009.
As I have also observed, the orders of 30 July 2009 provided that Mr Lynch spend time with and communicate with the child as agreed between Mr Lynch and the Mother. However, in his affidavits sworn on 8 February 2010 and 5 March 2010, Mr Lynch gave no evidence of any attempt by him, directly or indirectly, between April 2009 and February 2010 to communicate, in any form, with the Mother or make a request to spend time with the child X.
In summary, it was submitted on behalf of the Mother that absolutely nothing relevant to the proceeding, so far as the Mother and Mr Lynch were concerned, happened from the time the final orders were made on 30 July 2009 until 10 February 2010. There was no communication of any nature between the Mother and Mr Lynch and there was no correspondence between them. There was no correspondence between the solicitor for Mr Lynch and the solicitor for the Mother. There was no time spent by Mr Lynch with the child X. There was no request by Mr Lynch made to the Mother or the Mother’s solicitor to spend time with the child.
None of the matters that I have just described were referred to or even touched upon by the Federal Magistrate in his reasons. What his Honour did say at [22] was that there were four matters “uppermost” in his mind.
As to the first matter, as I have already observed, the Federal Magistrate at [23] said that, in his view, there should be the “opportunity to test and apply the objects and principles in s.60B of the Act against the contested facts in this case”. His Honour never explained what this meant. However, on behalf of the Mother it was submitted that the proposition implies that in every case where Rice and Asplund considerations exist, there is an obligation to engage in a full investigation of all the best interest considerations. It was submitted that this could not be good law and reliance was placed upon what was said by Collier J in King and Finneran (formerly King) (2001) FLC 93-079 at 88,367, namely:
41. The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or as I understand the appellant's submissions at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
The second matter the Federal Magistrate described at [25] was that the court and the parties should have the opportunity to test and evaluate other matters that are canvassed and set out in Pt VII of the Act regarding the meaningful relationship, or lack of it, or the capacity of the Mother to promote it, of the child X with Mr Lynch.
On behalf of the Mother it was submitted that this proposition ignores the facts clearly before the Federal Magistrate. It was submitted that Mr Lynch twice “walked away”, of his own volition, from proceedings — first, on 1 April 2009, when he withdrew his applications before the Federal Magistrates Court and second, in July 2009, when he entered into consent orders effectively relinquishing parental responsibility and defined time with the child, and allowing a long-distance relocation. It was submitted that Mr Lynch must have known, before he “walked away”, that relocation was “on the table”. It was submitted that Mr Lynch did nothing between late February 2009 and early 2010 to spend some time with the child X and did not even make a proposal to the Mother. For reasons I have explained, Mr Lynch was aware for some time of the Mother’s intention to seek to move to C.
It was submitted on behalf of the Mother that, in the circumstances adverted to, the apparent concentration by the Federal Magistrate on the considerations contained in s 60CC(4) of the Act as against the Mother and not Mr Lynch as a factor in deciding whether or not “changed circumstances” exist in the context of Rice and Asplund, amounted to his Honour taking into account an irrelevant consideration, alternatively, giving that consideration such excessive weight as to have rendered his decision clearly biased against the Mother.
As I have observed, the Federal Magistrate did not clearly identify and expand upon the third and fourth matters. However, on behalf of the Mother it was submitted that the “third matter” concerned the asserted lack of knowledge of Mr Lynch of the contents of the March 2009 family report. It was submitted that his Honour did not accord any opportunity to the Mother, or to the independent children’s lawyer to challenge the unsworn assertion, despite the fact that his Honour had in previous orders foreshadowed the prospect of further court time being afforded to the parties arising out of the written submissions. It was submitted that to uncritically accept an unsworn assertion by a party, without giving the opportunity to the other party to test that assertion is a denial of procedural fairness constituting appellable error.
It was submitted on behalf of the Mother that what was clearly common ground between the parties was that Mr Lynch had attended the family conference on 26 March 2009. Further, Mr Lynch never explained his failure to follow up on it and nor did he say what enquiries, if any, he made of his former solicitors. It was submitted that no opportunity was accorded to test those matters, and the Federal Magistrate appears to have accepted what amounts to a questionable assertion without any real analysis thereof.
First area of complaint - Conclusion
I have considered very carefully all of the evidence that was before the Federal Magistrate and accept the submissions made on behalf of the Mother. When consideration is given to the evidence before his Honour he made a number of errors.
Importantly, in my view, the Federal Magistrate failed to consider in any way what was said in Rice and Asplund and carried out what, in effect, was a review of his final judgment of 30 July 2009. His Honour approached the matter on the basis of considering whether or not his orders of 30 July 2009 should have been made given a number of matters which included whether the orders reflected what is set out in the legislation including the first primary consideration in s 60CC(2) of the Act; whether, in all the circumstances, the orders of 30 July 2009 were in the best interests of the child X. His Honour dealt with the matter on the basis of considering if his judgment was in accordance with the requirements of the legislation and decided that it was not.
In my view, it is clear from the various authorities, that this is not the nature of the enquiry if a Rice and Asplund argument is being considered. As the Full Court observed in Langham and Langham at 76,179: “Such a testing of the previous order upon the unchanged evidence would be in the nature of an appeal and could only be instituted as such”.
The rule in Rice and Asplund is not an “absolute rule” and a previous order may also be varied if some factor was not disclosed at the previous hearing: see Langham and Langham. In this case, the only undisclosed matter contended for by Mr Lynch was his lack of awareness of the March 2009 family report. I understand that Mr Lynch was contending that if he had been aware of this family report he would not have agreed to the judgment of July 2009. The difficulty with this contention is, as submitted on behalf of the Mother, that it was an unverified assertion by Mr Lynch and as well the Mother was not given the opportunity to challenge the assertion.
A number of submissions were also made on behalf of the Mother, which I need not repeat, as to the effect of a consent order and the relevance of the subjective intention of a party to such an agreement. It was submitted on behalf of the Mother that a parenting order made by consent ought to be treated in the same manner as consent financial orders, and the intention or state of mind of the parties ought not be enquired into, at least where, on their face, the orders are plain and straightforward: Langford and Coleman (1993) FLC 92-346 at 79,670-671 per Full Court (Nygh J with whom Barblett DCJ and Ellis J agreed).
In the circumstances of this case, it is not necessary to consider whether the intention or state of mind of Mr Lynch is relevant. I am of the view that if it was relevant, and it was established by evidence that Mr Lynch had not been aware of the family report, that of itself, given the history of this matter that I have set out above, would not be a material undisclosed factor that would justify a hearing of all of the issues that were disposed of by the July 2009 judgment. It also has to be remembered that in previous proceedings between the Mother and Mr Lynch the Federal Magistrate had made the order for the release of the March 2009 family report. This order was made by his Honour before his judgment of July 2009.
It was submitted on behalf of the Mother, and I agree, that it may be an application could be made by Mr Lynch in which he sought a specific definition of the time he was to spend with the child X in the event the Mother relocated to C. However, it is not appropriate to hear an application by Mr Lynch to effectively allow a re-agitation of each and every one of the issues which Mr Lynch had conceded by his entry into the consent orders.
Second area of complaint – Grounds 4 and 7
Given what I have decided in relation to the Rice and Asplund issue, it is unnecessary to consider the procedural fairness complaint. However, I am of the view that there is considerable merit in the complaint. The Federal Magistrate failed to give any notice that he proposed to rely upon many of the unverified assertions of Mr Lynch. The Federal Magistrate should not have relied upon the material that was not in evidence which included the March 2009 family report.
Conclusion
I would allow the first appeal. I do not propose that the matter be remitted for redetermination. All of the evidence which Mr Lynch relies upon was before the Federal Magistrate and is also before us. I am of the view that Mr Lynch has not established that there was a significant change in circumstances subsequent to the orders of 30 July 2009 or that there was a material factor that was not then disclosed. Therefore, I propose that his application be dismissed.
Grounds Of Appeal – Second Appeal
Introduction – Second Appeal
In the notice of appeal against the refusal of the Federal Magistrate to grant a stay pending the hearing of the first appeal there are two grounds of appeal which are:
1. The Federal Magistrate made an error in law, in finding the refusal to grant a stay would not render the Appeal filed 13 May 2010 nugatory on the basis the Full Court could hear and determine the said Appeal prior to 28 June, in that there was no evidence before his Honour to allow such a finding to safely be made.
2. The Federal Magistrate made an error in law, in finding there was a heavier burden of hardship on the Respondent in allowing the Stay than on the Applicant in refusing the Stay in that such a finding was:
(a)not supported by the evidence;
(b)not supported by adequate reasons.
Conclusion – Second Appeal
Given that I would allow the first appeal it is no longer necessary for us to deal with the second appeal. The trial was vacated. Further, I propose that the applications by Mr Lynch be dismissed and thus, subject to any further application by him, there would be no proceedings between the Mother and Mr Lynch in relation to the child X. However, I will briefly explain what happened.
In the written summary of argument filed on behalf of the independent children’s lawyer it was submitted that it became impracticable for the parties to prepare for the trial whilst at the same time preparing for the appeal in relation to the Rice and Asplund application and also the application for a stay pending the hearing of the appeal. It was submitted that as a matter of common sense and practicality, the trial could not be adequately prepared for being so close to the hearing of the appeal.
In the written summary of argument of the independent children’s lawyer it was also submitted that the child X’s interests would be best served by a proper and full investigation of all of the matters set out in Pt VII of the Act. It was said that the independent children’s lawyer did not hold the view that it was in the child’s best interests, at this time, for the trial to be held during the week following the hearing of the appeal.
I do not propose to repeat all of what was submitted on behalf of the independent children’s lawyer, however, I observe that it was stated that “in weighing up the matters it therefore appears that [X] might only benefit from a stay of the trial orders as he can enjoy supervised contact with his father in the meantime”.
At the commencement of the hearing before us the Presiding Judge raised for discussion what was said in the written submissions of the independent children’s lawyer in relation to the forthcoming trial. Counsel for the independent children’s lawyer informed us that the independent children’s lawyer would not be ready to conduct a trial during the week following the hearing of the appeal. The independent children’s lawyer also submitted that it was in the best interests of the child X that he spend some supervised time with Mr Lynch and after a period of at least six months a family report be prepared.
We were also informed by counsel for the Mother that she had not yet filed her affidavit of evidence in chief in relation to the proceedings between herself and Mr Lynch.
In discussion with Mr Lynch it became apparent that he also had not filed further affidavits of evidence in chief since the affidavits which he filed in relation to the hearing of the application of the Mother that his application be dismissed.
In conclusion, I was of the view that the trial of the applications for final orders in the proceedings between the Mother and Mr Lynch could not possibly commence on the Monday following the hearing before us. Further, that we may not have the opportunity to pronounce our judgment in sufficient time to enable the trial to proceed and thus the two appeals would be rendered nugatory.
In the circumstances, I am of the view that the appeal in relation to the application for a stay should succeed and in those circumstances the trial of the applications for final orders of the Mother and Mr Lynch in the proceedings between them be vacated.
Costs
At the conclusion of the hearing before us we did not receive submissions in relation to costs. I therefore propose that directions be made in relation to the filing of any application for the costs of the appeals.
Strickland J
I have had the considerable advantage of reading in draft the comprehensive reasons for judgment of O’Ryan J and the succinct reasons for judgment of Finn J.
I agree with Finn J and O’Ryan J that the appeals against the orders made on 20 April 2010 and 11 June 2010 should be allowed and I further agree with the proposed orders. My reasons for allowing the appeals and making the orders proposed accord generally with the reasons of both Finn J and O’Ryan J.
I certify that the preceding two-hundred and seventy-eight (278) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Finn, O’Ryan and Strickland JJ delivered 17 September 2010.
Associate:
Date: 17 September 2010
- AGLC
- Reid & Lynch [2010] FamCAFC 184
- Case
- [2010] FamCAFC 184
- Decision Date
CaseChat Overview and Summary
The court examined the legal framework governing consent orders in the Family Law Rules 2004 (Cth) and the Federal Magistrate’s Court Rules 2001 (Cth). It also delved into the various forms of estoppel, including res judicata, issue estoppel, and Anshun estoppel, to determine their applicability. The court found that the Federal Magistrate failed to properly consider the principles articulated in Rice and Asplund. Furthermore, the court determined that the father was not aware of the family report and that the report was not a material undisclosed factor that would justify a rehearing of all issues. Consequently, the court ruled that the Federal Magistrate should not have relied on the family report, which was not in evidence.
The appeal against the Federal Magistrate's refusal to dismiss the application was allowed, and the orders made on 20 April 2010 were set aside. The application filed on behalf of the respondent on 10 February 2010 was dismissed. The court also vacated the final hearing as the requisite material had not been filed, and the appeals would otherwise be rendered nugatory. The court further addressed the issue of costs, reserving the matter for later determination.
The orders made by the court included allowing the appeal against the Federal Magistrate's decision, setting aside the orders made on 20 April 2010, dismissing the application filed on 10 February 2010, and directing the parties to submit written submissions regarding costs within specified timeframes. The parties were also given liberty to reply to the submissions of the other party.
Orders
Orders of the court
1.
The appeal against the refusal of Federal Magistrate Neville on 20 April 2010 to dismiss the application filed by the Respondent on 10 February 2010 be allowed.
2.
The order and notation made on 20 April 2010 be set aside.
3.
The application filed on behalf of the Respondent on 10 February 2010 be dismissed.
4.
Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeals by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other parties within 28 days of the date hereof.
5.
Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other parties.
6.
Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Region Appeal Registry of the Family Court of Australia and serving it on the other parties within a further 7 days.
7.
Each party endorse on the cover sheet of any submissions filed pursuant to orders 4, 5 and 6, the date upon which a copy of that submission was served on the other parties.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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