REID & LYNCH
[2010] FMCAfam 553
•20 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REID & LYNCH | [2010] FMCAfam 553 |
| FAMILY LAW – Parenting – Rice & Asplund application as a “preliminary issue” – broad discretion of the Court in the light of the “best interests of the child” principle. |
| Family Law Act 1975, ss.60B, 60CC |
| Mazorski v Albright (2008) 37 Fam LR 518 Miller & Harrington (2008) FLC ¶93-383 Rice & Asplund (1979) FLC ¶90-725 SPS & PLS (2008) 217 FLR 164; (2008) 39 Fam LR 295 |
| Applicant: | MS REID |
| Respondent: | MR LYNCH |
| File Number: | CAC 111 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 20 April 2010 |
| Date of Last Submission: | 16 April 2010 |
| Delivered at: | Canberra |
| Delivered on: | 20 April 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Webb Commins Hendriks, Wagga Wagga |
| Respondent: | Mr Lynch - Self-represented litigant |
| Independent Children’s Lawyer: | Ms Terrill Loretta Terrill Family Lawyer, Albury |
ORDERS
That the matter be set down for final hearing to be heard as a special fixture in Wagga Wagga 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.
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).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 111 of 2009
| MS REID |
Applicant
And
| MR LYNCH |
Respondent
REASONS FOR JUDGMENT
A. Introduction & Procedural History
The following reasons were delivered orally on 20th April 2010. They have been revised from the Transcript.
Mr Lynch is the Father of [X], who was born [in] 2008. [X]’s Mother is Ms Reid. In early 2009, [X] was diagnosed with epilepsy.
Ms Reid and Mr Lynch were in a relationship between February and August 2007. They married [in] 2007 and separated in 1st August 2007.
Ms Reid has two children from an earlier relationship with Mr L: [Y] (born September 1997) and [Z] (born June 2001). Ms Reid’s relationship with Mr L was as a de facto couple between 1997 and 2001.
Ms Reid is now engaged to be married to Mr S, who lives near [C]. Ms Reid, understandably, wishes to relocate to be with her future husband. To this end, she filed an Initiating Application on 15th July 2009, in which Ms Reid sought orders in relation to all the children, and seeking Court approval that she be permitted to relocate to [C], or any area reasonably proximate thereto. Both Mr L and Mr Lynch were named as respondents to that Application.
On 29th July 2009, Ms Reid and Mr Lynch entered Consent Orders. Summarily stated, those orders provided that (a) [X] live with his Mother, (b) she have sole parental responsibility for him, (c) the Father spend time with and communicate with [X] as agreed between the Father and the Mother, and, finally, (d) the Mother be permitted to relocate with [X] to [C]. Prior to these Orders being made, at various times, Mr Lynch had spent time with [X], albeit somewhat limited.[1]
[1] See, for example, Orders made on 11th February 2009, which provided for the parties to “share responsibility for the child [X]” and that Mr Lynch spend time with [X] each Sunday between 12 noon and 2pm.
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].
Without making any finding, with such a work history, which seems not disputed, it may be inferred that (a) Mr Lynch has significant experience dealing with young children and (b) the usual police checks for such professions have not disclosed anything untoward. Had they done so, doubtless the Court would have been advised promptly.
Ms Reid confirms that Mr Lynch pays child support in relation to [X] of $170.00 per fortnight, and that his current assessment is $387.00 per month.[2]
[2] See Ms Reid’s affidavit, filed 13th April 2010, par.16.
Prior to his relationship with Ms Reid, Mr Lynch had been previously married for approximately 8 years. From that relationship, he has two children, [A] (born March 1999) and [B] (born August 2003). Orders were made in the Wagga Wagga Local Court on 26th May 2006 in relation to [A] and [B]. They essentially provide for a shared care arrangement for these children between Mr Lynch and his former wife.
Mr L filed a Response to Ms Reid's Application on 13th August 2009, in which he sought orders dismissing the Application.
B. Preliminary Issue
A preliminary issue has arisen in relation to matters concerning
Ms Reid and Mr Lynch, and their son, [X]. On 10th 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 his son [X], and to prevent Ms Reid from relocating to [C].
On 11th March 2010, Mr Lynch filed an Initiating Application in which he sought orders preventing Ms Reid from relocating, and to increase the time he spends with [X]. For present purposes I will refer to both Applications simply as the “Application.”
The preliminary issue raised on behalf of Ms Reid is whether the principles set out in the case of Rice & Asplund, and as those principles have been articulated in more recent cases,[3] prevent Mr Lynch's Application proceeding.
[3]Rice & Asplund (1979) FLC ¶90-725; SPS & PLS (2008) 217 FLR 164; (2008) 39 Fam LR 295; (2008) FLC ¶93-363; Miller & Harrington (2008) FLC ¶93-383.
I have had the benefit of written submissions from the applicant,
Ms Reid, 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 thank everyone for the thoroughness of those submissions. I have read them all.
In addition to the original case of Rice & Asplund and the cases helpfully referred to by Mr Webb (on behalf of Ms Reid) and particularly, by Ms Terrill, for my part the judicial touchstones might be summarised this way.
I have had particular regard to the detailed discussion of principle by Warnick J in SPS & PLS, where his Honour was sitting as the Full Court. The Full Court decision in Miller & Harrington, to which I have earlier referred, is also significantly relevant. This latter case is relevant, both for its discussion of Rice & Asplund and for issues relating to procedural fairness. Also, in the light of the discussion of principle by Warnick J in SPS & PLS, at [48], in relation to the objects and principles in Part VII of the Family Law Act (“the Act”) and the “best interests principle”, for ease of reference, I gratefully adopt Brown J’s helpful summary of principle in relation to Part VII of the Act in Mazorski & Albright.[4]
[4] (2008) 37 Fam LR 518.
Because Mr Lynch is a self-represented litigant, and for general ease of reference, her Honour’s remarks at [3] – [6] of that judgment are set out below:
3.The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
4. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
5. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
6. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Turning, firstly, to Warnick J’s judgment in SPS & PLS, I refer in particular to a summary of principle that his Honour provides, at [48] of that judgment. His Honour stated:
In my view, reflection on the rule shows that:
(1)what the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing;
(2)in its original formulation, the rule is directed to application as a preliminary matter, yet contemporaneously with that formulated the court in Rice & Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention;
(3)at whatever stage of a hearing the rule is applied, its application should remain nearly a manifestation of the “Best Interests Principle”;
(4)discussion in terms that the rule may be applied as a “preliminary matter,” or the primary application be first heard “on the merits,” may be unhelpful, particularly because of the implication that if the rule is applied as a preliminary matter, the parenting application is not –
and his Honour emphasises that word, “not” -
then dealt with “on the merits”;
(5)the application of the rule is closely connected with the nature of and degree of change sought to the earlier order;
(6)shorthand statements of the rule may contribute to its misapplication;
(7)any application of the rule must now measure the evidence against the principles set out in Part VII of the Act. In particular, the object of the part, the presumption of equal share parental responsibility, and the steps required by the Act consequent upon an order made or to be made in that regard.
Amongst other things, it is particularly in relation to subparagraph (7) of [48] that I made reference to the “twin pillars” remarks of Brown J in Mazorski & Albright, and her summary of the principles and objects of Part VII of the Act. No less relevant are Warnick J’s comments at [81] of his judgment in SPS & PLS. In that paragraph, his Honour said:
In my view, when the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination “on the merits.” Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear, or some lack of compliance with form and procedure, but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerful in the child’s welfare than to allow the application to continue.
Mr Webb rightly questions a number of matters going to the form of Mr Lynch’s application. I agree, in essence, with many of them, that there are difficulties in this regard. However, in the light of his Honour’s comments in relation to substance over form (they are my words), and having regard to the fact that Mr Lynch is a self-represented litigant, I propose to overlook those procedural or formal difficulties for the purposes of these remarks.
Four matters are uppermost in my mind in relation to the application of Rice & Asplund, in the light of SPS & PLS, on the facts of this matter. In all of them, in my view, [X]’s best interests have been at the forefront of my considerations.
Firstly, as I have consistently noted, in accordance with statutory and jurisprudential principle, the best interests of [X] remain paramount and, therefore, in my view, the Court (and the parties) should have the opportunity to test and apply the objects and principles in s.60B of the Act against the contested facts in this case.
Secondly, the Court (and the parties) also should, in my view, have the opportunity to test and evaluate other matters that are canvassed and set out in Part VII regarding the meaningful relationship, or lack of it, or capacity of Ms Reid to promote it, of [X] with Mr Lynch.[5]
[5] In this regard, again I adopt respectfully Brown J’s discussion of what is comprehended by “meaningful” under the Act in Mazorski v Albright at [20] – [26].
Perhaps the two most critical things that have figured most prominently in my mind is, firstly, the fact, as is asserted by Mr Lynch, that the critical Family Report of Ms Blanch, which was released on 27th March 2009, and the significant issues it raised, curiously and unfortunately never came to his attention.
Therefore, it is more than reasonably argued, and certainly, Mr Lynch does argue it, that he signed the Consent Orders without ever having seen that Report of the Family Consultant. Among other things, as a matter of procedural fairness, it seems to me that that issue and the position that now presents itself to the Court, of a litigant (self-represented or otherwise) who signed orders without having seen a significant Family Report, at least should be explored and considered at trial.
In a not completely dissimilar vein, Mr Lynch contends (and doubtless will be the subject of some detailed examination at trial) that he signed the Consent Orders either without knowing the import of a document headed “Minutes of Proposed Orders” (emphasis added), or certainly mis-understanding the import of such a description of such a document. As a self-represented litigant, it seems to me that some benefit of the doubt should be extended in relation to the comprehension of a document with such a heading that included the word “proposed.”
Finally, without making any formal finding, it may be further observed that the Orders of July 2009 are predicated on, at least, two matters: first, that the applicant Mother was to relocate from [W]; secondly, that [X] would spend time with his Father as agreed between the parties. As I understand the current situation, neither of those matters has taken place.
In such circumstances, one might not unreasonably inquire how the statutory object of s.60B(1)(a), and the primary consideration in s.60CC(2)(a), regarding a “meaningful relationship” between parent and child, occur if there is no time spent between the parent and the child.
It may be, of course, that, at trial, the facts of Mr Lynch’s protest about being prevented from spending any time with [X] are incorrect and or that the circumstances are such that it is not in his best interests for this to occur. But they are matters that cannot, and should not, be the subject of any adjudication before the merits of the application are able to be addressed at trial.
In my view, in the light of the short account set out in these reasons, there has been a sufficiently material change in circumstances so as to warrant the Court, at this stage, not acceding to Ms Reid's Application to dismiss Mr Lynch's Application. To allow it to proceed would, in my view, be in [X]’s best interests, which must, ultimately, be the relevant standard. To use the words of Warnick J in SPS, the parties (and through them, [X]) should have the opportunity to have the merits of the case fully aired at trial.
Thus, having regard to (a) the Rice & Asplund principles articulated by Warnick J in SPS & PLS, (b) the extensive and broad range of precedent from case law that is readily available in standard practice books in relation to the application of the Rice & Asplund principles,[6] and (c) the extremely broad discretion that rests with the Court to ensure that the child’s best interests are secured as the paramount consideration, I do not see that Mr Lynch should be prevented from pursuing the Application that is currently before the court. At the same time, and again in accordance with Warnick J’s comments in SPS, I also grant leave, should that be necessary, for Mr Webb and his client, at the conclusion of the trial, to renew the application in relation to the principles in Rice & Asplund acting to prevent Mr Lynch's Application proceeding.
[6] See, for example, the collection of cases in Australian Family Law, Vol 1 (LexisNexis Butterworths) at [s. 60CC.220] pp.1284.221 – 1284.223.
C. Conclusion
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) Ms Reid 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 Blanch, 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.
Notwithstanding the above, Ms Reid may renew her Rice & Asplund “point” at the conclusion of the trial.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
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