Richardson & Colombo
[2021] FedCFamC1A 35
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
Richardson & Colombo [2021] FedCFamC1A 35
Appeal from: Colombo & Richardson [2021] FCCA 789
Colombo & Richardson (No 2) [2021] FCCA 790
Appeal number(s): SOA 18 of 2021
SOA 19 of 2021File number(s): MLC 12837 of 2018 Judgment of: STRICKLAND J Date of judgment: 13 October 2021 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the Independent Children’s Lawyer argues that leave to appeal is required in relation to the orders made on 17 March 2021 as they are interlocutory and are not in relation to a child welfare matter – Where the orders are plainly interlocutory but have sufficient nexus with a child welfare matter as defined to come within the exception provided by the regulation – Leave to appeal not required.
APPEAL – PARENTING – Where the first respondent has not been denied procedural fairness – Where there is no adequate reason provided by the first respondent for being absent from court when final orders were made – Where the first respondent provides no explanation adequate or otherwise for the delay in filing the application – Where the difficulties in succeeding in a weight challenge are well-known – This is an interim order and it has not been demonstrated that the primary Judge made an appealable error – Where the primary Judge balanced risk with the need to promote a meaningful relationship between the children and the first respondent – Where no error is demonstrated – That part of the appeal against the Order permitting the first respondent to proceed with the application pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) be allowed – That Order be set aside – That part of the appeal be dismissed insofar as it appeals from paragraph 2 of the Order made on 17 March 2021 – Appeal no. SOA 19 of 2021 be dismissed.
APPEAL – COSTS – Where all parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the first respondent sought costs against the appellant in relation to the unsuccessful appeals – Where all parties are receiving legal aid and there is no point in such an order being made – Where it is appropriate for costs certificates to be granted as there is no order for costs being made and the appeal is being allowed on a question of law – Costs certificates ordered as sought in relation to the appeal from paragraph 1 of the Order made on 17 March 2021.
Legislation: Family Law Act 1975 (Cth) Part VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(b)
Federal Circuit Court Rules 2001 (Cth) r 16.05
Federal Circuit and Family Court of Australia Regulations 2021 (Cth) reg 4.02
Federal Proceedings (Costs) Act 1981 (Cth) s 6, s 9
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Barbey & Tuttle (2013) FLC 93-534; [2013] FamCAFC 44
Bienstein & Bienstein (2003) 195 ALR 225
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hart & Sellwood (2016) FLC 93-753; [2016] FamCAFC 254
Helbig & Rowe [2014] FamCAFC 179
Jukes v Doyle (2005) 32 Fam LR 617; [2005] FamCA 39
Malak & Malak (2016) FLC 93-718; [2016] FamCAFC 114
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
Number of paragraphs: 95 Date of hearing: 21 September 2021 Place: Melbourne via video link to Adelaide Counsel for the Appellant: Mr Testart Solicitor for the Appellant: Morrison & Sawers Lawyers Counsel for the First Respondent: Mr Lovering Solicitor for the First Respondent: Faram Ritchie Davies The Second Respondent: In Person Counsel for the Independent Children's Lawyer: Ms Borger Solicitor for the Independent Children's Lawyer: Medson Legal ORDERS
SOA 18 of 2021
SOA 19 of 2021
MLC 12837 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS RICHARDSON
Appellant
AND: MS COLOMBO
First Respondent
MR WEST
Second Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
13 OCTOBER 2021
THE COURT ORDERS THAT:
1.Appeal no. SOA 18 of 2021 be allowed insofar as it appeals from paragraph 1 of the Order made on 17 March 2021.
2.Paragraph 1 of the said Order be set aside.
3.The said appeal be dismissed insofar as it appeals from paragraph 2 of the said Order with the consequence that the respondent mother be permitted to proceed with her application filed on 9 October 2020 seeking different parenting orders than those made on 25 February 2019.
4.Appeal no. SOA 19 of 2021 be dismissed.
5.The oral application for costs made by the respondent mother be dismissed.
6.The Court grants to the appellant maternal grandmother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant maternal grandmother in respect of the costs incurred by her in relation to the appeal from paragraph 1of the Order made on 17 March 2021.
7.The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal from paragraph 1 of the Order made on 17 March 2021.
8.The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal from paragraph 1 of the Order made on 17 March 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Richardson & Colombo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 15 July 2021, Ms Richardson (“the maternal grandmother”) filed two Amended Notices of Appeal. The first (appeal no. SOA 18 of 2021) appeals from the orders made on 17 March 2021, and the second (appeal no. SOA 19 of 2021) appeals from certain of the interim orders made on 18 March 2021, by a Judge of the Federal Circuit Court of Australia (now known as Division 2 of the Federal Circuit and Family Court of Australia).
Both appeals are opposed by Ms Colombo (“the mother”) and the Independent Children’s Lawyer (“ICL”). Mr West (“the father”) appeared at the hearing of the appeals, but took no part in the same, and did not file any documents.
The orders the subject of the first appeal permitted the mother to pursue her application for interim and final parenting orders pursuant to the then r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), and dismissed the maternal grandmother’s application pursuant to the rule in Rice & Asplund (1979) FLC 90-725, seeking the dismissal of the mother’s application.
The interim orders the subject of the second appeal provided for the three children, X (aged 12 years), Y (aged 8 years) and Z (aged 7 years), to spend monthly supervised time with the mother, for their delivery and collection, for telephone communication each Monday, and for injunctions in relation to the mother’s partner and the father.
I note that the injunctions were only made the subject of the appeal because they were made in the context of the order for supervised time; there was no challenge to them per se. Indeed, given their content, the maternal grandmother could have no issue with them as stand-alone orders, and thus they should be excluded from consideration.
BACKGROUND
The mother and father commenced cohabiting sometime in 2008, and separated in 2018.
The evidence of the maternal grandmother in the proceedings below was that the parents’ relationship was of an “on-and-off-again” nature, characterised by mutual family violence and illicit drug use and dependence. Further, that the mother had significant undiagnosed and untreated mental health issues. The mother’s, the father’s, and maternal grandmother’s ongoing use and dependence on illicit drugs were live issues in the parenting proceedings.
Following the parents’ separation in 2018, the children were cared for by the mother.
In September 2018, the mother placed the children in the maternal grandmother’s care following a violent incident between the mother and the father. The maternal grandmother refused to return the children to the mother out of concern for the children’s welfare.
The maternal grandmother then filed an application in the Magistrates’ Court at Town C seeking parenting orders. Interim parenting orders were made by that court on 9 October 2018 in the absence of the mother and the father, and on 16 October 2018 the matter was transferred to the Federal Circuit Court of Australia sitting in Town C on 12 November 2018, as well as consent orders being made for the children to continue living with the maternal grandmother, and for them to spend limited supervised telephone time with the mother and the father.
On 7 November 2018, a Registrar determined the matter would not be listed in the November 2018 circuit, and instead listed its first return date on Monday 25 February 2019. The primary Judge found at [17] that the maternal grandmother was advised of this, but there was no evidence that the mother was informed of this change.
Thereafter the maternal grandmother proceeded in the Federal Circuit Court of Australia on her application for parenting orders. Neither the mother nor the father filed any material in response to those applications.
On 22 February 2019, the Friday before the first return date the following Monday, the maternal grandmother filed and served on the mother an affidavit, Amended Application for Interim and Final Parenting Orders, and a covering letter which included the following:
Your family law matter is next listed for hearing on 25 February on 2019 at the Federal Circuit Court sitting at Town C. We note that you have not yet filed any responding material in relation to this matter. Our client will seek orders pursuant to the enclosed amending initiating application. If you do not attend the Court hearing, these orders may be made in your absence.
At [23] the primary Judge found the mother had been provided “very short notice” of the possibility of final orders being made on 25 February 2019, and ordinarily the Federal Circuit Court of Australia would not make final orders in the absence of a party upon notice so short.
Neither the mother nor father attended court on the first return date, namely 25 February 2019. The maternal grandmother sought that final parenting orders be made on an undefended basis, and the Judge allowed that application.
The final parenting orders made on 25 February 2019 provided for the maternal grandmother to have sole parental responsibility for the children, for the children to live with the maternal grandmother, for the parents to spend supervised time with the children as agreed with the maternal grandmother, and for the parents to communicate with the children by telephone as agreed with the maternal grandmother. A notation to the order recorded:
Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the Court may vary or set aside a judgment or order made in the absence of a party
The father explained to the primary Judge that his recollection was that the mother had asked for his assistance to attend on 25 February 2019, but that she had not attended because she had slept in.
The primary Judge found at [24] and [27] that the mother’s “life was in chaos” around this time in 2018–2019. The primary Judge referred to evidence indicating the mother had been evicted from her house, and had then stolen a car in the father’s company in February 2019, the purpose of which was to facilitate a relocation of her residence to a caravan park. The mother was later arrested and then bailed in February 2019. The maternal grandmother deposed to the mother’s chaotic lifestyle of drugs and crime, untreated mental health issues, and possible Post-Traumatic Stress Disorder, as being the prevailing realities of the mother’s life at this time.
That was how things stood until September 2019, when the maternal grandmother refused to agree to the mother’s requests for time with the children. The mother instructed solicitors around this time, and they communicated with the maternal grandmother’s solicitors in relation to a change in the parenting regime.
There is evidence of a violent incident in February 2020, where the mother, in the company of her partner, attempted to forcibly enter the maternal grandmother’s house and made threats against the maternal grandmother and her other children, and subsequently attacked the father and his partner at their home with knives and a crowbar. The mother’s position is that these are false allegations made by the maternal grandmother and the father. However, the mother was charged with breaching an intervention order, possess dangerous article, recklessly cause serious injury, and unlawful assault. I note that this Court has not been informed of the outcome of those charges.
On 9 October 2020, the mother filed her Initiating Application seeking interim and final parenting orders, and specifically, sole parental responsibility for the children, for the children to live with the mother, and for the time with the maternal grandmother and the father to be determined. In effect, the mother sought to “reopen” the final parenting orders made on 25 February 2019 pursuant to the then r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), on the basis that the orders were made in her absence and ought to be “revisited”.
The maternal grandmother sought that the mother’s application be dismissed, and in any event, contended that the mother had failed to establish that there had been a sufficiently serious change of circumstances to render it in the best interests of the children to warrant re-litigation of the parenting dispute, relying on the rule in Rice & Asplund.
On 9 December 2020, the primary Judge made interim parenting orders by consent providing that the 25 February 2019 orders remain in force, and the children’s supervised time with the mother occur at a contact centre in Town C by agreement between the maternal grandmother and mother. A supervised contact occurred in February 2021. After this contact the mother and the maternal grandmother made allegations against one another of stalking and threatening behaviour.
LEAVE TO APPEAL
In the summary of argument filed by the ICL on 15 September 2021, the ICL raises for the first time, the submission that the maternal grandmother requires leave to appeal the orders made on 17 March 2021. That submission is supported by the mother, but is opposed by the maternal grandmother.
Pursuant to s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), an applicant requires leave to appeal “a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 2)”. A “prescribed judgment” is then defined in reg 4.02 of the Federal Circuit and Family Court of Australia Regulations 2021 (Cth) as “an interlocutory decree (other than a decree in relation to a child welfare matter)”. A “child welfare matter” is defined in reg 4.02(2) to mean a matter relating to the person the child is to live with, the person a child is to spend time or communicate with, or any other aspect of parental responsibility within the meaning of Part VII of the Family Law Act 1975 (Cth) for a child.
That Act and the Regulations came into effect on 1 September 2021, but in relation to the question of leave to appeal, they do not make any change to the previous legislation, and which was in force when the orders were made and the Amended Notice of Appeal was filed.
The ICL argues that the orders are interlocutory and are not in relation to a child welfare matter.
An order is interlocutory if it does not finally determine the rights of the parties in a principle cause pending between them (Bienstein & Bienstein (2003) 195 ALR 225, at [25]).
Plainly, the orders made on 17 March 2021 are interlocutory and not final, applying that definition. However, I am not persuaded that the orders are not in relation to a child welfare matter, and thus leave to appeal is not required. They are not simply orders as to matters of practice and procedure as claimed by the ICL. They are in relation to, and have a sufficient nexus with a child welfare matter as defined, and thus come within the exception provided by the Regulation (compare with Helbig & Rowe [2014] FamCAFC 179, Sahadi & Savva and Anor (2016) FLC 93-704, and Tallant & Kelsey (2016) FLC 93-742 where the exception did not apply, but see Hart & Sellwood (2016) FLC 93-753 and Jukes v Doyle (2005) 32 Fam LR 617 where it did).
THE FIRST APPEAL
The grounds of appeal are as follows:
1.The primary judge erred and his discretion was miscarried in permitting the Mother to continue with her Application filed 9 October 2020 in that:
a.the primary judge should not have found to the effect that the mother was denied procedural fairness when the final orders were made in February 2019;
b.the primary judge should not have found to the effect that the Mother has an adequate reason for being absent from court when the final orders were made in February 2019;
c.the primary judge should not have found that the Mother had adequately explained her delay in bringing her application;
d.the primary judge should not have exercised his discretion to find to the effect that the Mother ought to be given leave to proceed with her application pursuant to the principle in Rice v Asplund;
e. the primary judge should not have exercised the court’s discretion under Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 to set aside judgement.
2.His Honour, the learned primary judge (primary judge), found (amongst other things) that the Mother had established a significant change of circumstances by reason of the fact that she had ended her relationship with the Father, Mr West. This issue was not raised at any time by any party or the primary judge during the hearing before the primary judge, and the appellant was not given the opportunity to respond to this issue. The appellant was denied procedural fairness as to that finding. In any event, such finding is challenged as being a sufficient change of circumstances.
It is apparent that Grounds 1a, b, c and e relate to the appeal against the order made pursuant to r 16.05(2)(a), and Grounds 1d and 2 relate to the appeal against the order dismissing the maternal grandmother’s application seeking dismissal of the mother’s application pursuant to the rule in Rice & Asplund.
Ground 1a
His Honour said this at [34]:
In my view, those matters are significant, and it cannot be said that the Mother was, in the unfortunate circumstances that she found herself in, accorded the usual level of procedural fairness that litigants in the Federal Circuit Court would be accorded. In saying that, in my view, the letter to which I have referred indicates the Maternal Grandmother's solicitor going beyond what was strictly required by the rules, by procedural fairness, and nothing that I have said should be seen as a criticism of either the Maternal Grandmother's solicitor or the Court on the return of the matter. I also note that on the evidence before the Court, orders leaving the children living with the Maternal Grandmother in the circumstances of the chaos of the Mother's life at that time would make those orders sensible ones to be made.
However, it seems from [33] that the only thing his Honour could have been referring to in [34] was the fact that, “[o]rdinarily the first return in the Federal Circuit Court of a children’s welfare matter when the Mother had not been ordered to file material, albeit she was required by the Rules of Court to file it, and had not filed material would not be undefended final orders.” It could not relate to the personal circumstances of the mother at the time, because a lack of procedural fairness means in this context, the lack of opportunity to present her case before orders are made (Allesch v Maunz (2000) 203 CLR 172 per Kirby J at [35]). And that was not the case here. Indeed, this was not the first time that the mother had failed to appear at a hearing. The initial proceedings had been listed in the Magistrates Court at Town C on 9 October 2018, and although the mother was served with the documents, she failed to attend when orders were made on an undefended basis ([14]). Thus, on 16 October 2018, when the mother did attend, consent orders were made maintaining the status quo, and the proceedings were referred to the Federal Circuit Court sitting in Town C on 12 November 2018. That date of course was changed to 25 February 2019 by the court, and although his Honour was not able to find that the letter advising that went to the mother, as it did to the maternal grandmother, the mother did not attend court on 12 November 2018. Nor did the mother file responding documents prior to that date. Indeed, she filed no documents at all. Then, the maternal grandmother’s amended documents were served personally on the mother on 22 February 2019, together with a letter which read as follows:
Your family law matter is next listed for hearing on 25 February on 2019 at the Federal Circuit Court sitting at Town C. We note that you have not yet filed any responding material in relation to this matter. Our client will seek orders pursuant to the enclosed amending initiating application. If you do not attend the Court hearing, these orders may be made in your absence.
However, the mother failed to attend the hearing on 25 February 2019, when she clearly had the opportunity to do so.
If, for some inexplicable reason, the court did not advise the mother of the dates, she well knew the date on 22 February 2019, when she was served. In that regard, I note that the maternal grandmother filed an Affidavit of Service, and an Acknowledgement of Service signed by the mother. Yet, in her affidavit filed on 9 October 2020 in support of her application to reopen the proceedings, the mother deposed as follows:
…
10.I did not attend Court. I was not aware of the Court proceedings as detailed below.
…
70.On February 2019 I did not go to the Federal Circuit Court. I had moved and did not get the date. I never received a copy of the Final Orders.
Tellingly, the mother provided no other reason in that affidavit for her failure to attend the court on 25 February 2019. Indeed, in the paragraphs referred to above, she was clearly falsely suggesting that she did not know the date, and that she was not aware of the proceedings. Further, I note that in paragraph 68 of the same affidavit, the mother made a similarly false claim that her reason for not attending the hearing in the Town C Magistrates Court on 9 October 2019, was that she was unaware of the proceedings, despite being personally served with the documents.
Given the history of the matter, and the circumstances at the time of the making of the orders on 25 February 2019, I consider that it was well open to the court to make those orders in the absence of the mother. And, as the primary Judge recognised at [34], those orders were “sensible ones” to make.
Thus, there is no issue of a lack of procedural fairness here. Indeed, no appeal was brought by the mother alleging that. And, it is instructive to recall what Kirby J said in Allesch v Maunz after describing the requirement to provide procedural fairness, namely:
38.… it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted [32]), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
This ground of appeal has merit.
Ground 1b
This ground also has merit. To repeat, the only reference in the mother’s affidavit to any reason for failing to attend court on 25 February 2019, are those found in paragraphs 10 and 70.
Plainly, as identified above, those reasons are false. Thus, they cannot provide an adequate reason for being absent from court when the final orders were made.
However, what his Honour appears to have done is to look behind those express reasons and make some assessment of the mother’s circumstances at the time. In short, his Honour suggested that her “life was in chaos”. For example, his Honour said this at [27]:
27However, what is overwhelmingly clear is that from 14 September 2018, if not before that, up until the morning of 25 February 2019, the Mother's life was in chaos. Charged with stealing a car, relocating her home, and back in the company of the man who on her account had wreaked a serious incident of family violence against her, or on his account there has been a mutual violent and ugly interaction, and on the Father's account, continuing to use drugs and insist that the Father assist her use those drugs. In my view, those circumstances must be looked at as part and parcel of the Mother's explanation as to why she failed to attend on 25 February 2019.
The problem with that is that those circumstances were not “part and parcel of the mother’s explanation as to why she failed to attend on 25 February 2019”.
And, in any event, his Honour was quite correct in subsequently observing at [31], that:
…It is not a sufficient explanation to say that the Mother was involved in drugs and crime and hence could not get to Court. Litigants do not get a free kick because they are involved in drugs and crime.
His Honour went on and said that nonetheless, he was “compelled to look at the actual circumstances” of the mother at that point in time. That is also correct, but only if those circumstances are the reasons proffered by the applicant as the explanation for the failure to attend.
Confusingly though, rather than come to a conclusion about the adequacy of the reasons, his Honour’s consideration of that issue then morphed into a consideration of whether there was a lack of procedural fairness, and I have addressed that issue in relation to Ground 1a.
Thus, although it seems that his Honour, in effect, found that there was an adequate explanation of the mother’s absence, there was no such specific finding, and it is unclear on what basis his Honour proceeded.
Perhaps then, that should have been the ground of appeal, but even as drawn, the ground has merit, emphasising that his Honour should not have found to the effect that there was an adequate explanation.
Ground 1c
This ground complains about a finding that his Honour did not make.
It is submitted that the finding is implied in [32] and [33], but I do not accept that. There his Honour talked of the mother being a victim of family violence and that she had not had any therapy or treatment for that violence. That may be so, but it cannot provide an explanation for the delay in instituting proceedings, and in my view, his Honour did not find as such. That is demonstrated by his Honour raising the issue more specifically in [42], but only as an afterthought following his determination in [41] that “[f]or all of those reasons, … the Mother should be permitted to revisit the matter pursuant to rule 16.05.”
In [42] his Honour said this:
The further relevant event that must be taken into account is that about a year after the final orders were made, and just before I do that, I just want to return to the rule 16.05 reasons in terms of those three principles that I addressed. There is a fourth principle that, in my view, needs to be addressed when considering a rule 16.05 application, and that is the delay in bringing a further application; that is, it cannot be appropriate that a party would sit on the orders that were made when they were not present, test out whether it suited them or not, and then later on down the track, when it does not suit them anymore, bring an application saying, “I wasn't there and here is my explanation,” and otherwise fulfilling the three tests of Ballan & Sandford [[2018] FCCA 2436].
Thus it can be seen that his Honour did not make the finding complained of. However, having concluded his consideration of the application pursuant to r 16.05, his Honour then went on to consider, “THE RICE & ASPLUND ISSUE”, and said this:
43In this case, it is not disputed that in September 2019 the Mother engaged with lawyers and the first thing the lawyers did was seek to obtain a copy of the order of 25 February 2019. There is no evidence that in fact the Mother was served with or that those orders were brought to her attention any time soon after 25 February 2019, but it is clear that in September 2019, she engages solicitors and engages the Maternal Grandmother's solicitors.
44A copy of the orders was obtained. An attempt to have mediation was made but was refused to the Mother as not a suitable matter for mediation. I expect in the circumstances of the prevalence of family violence in the case. It is clear that the Mother agitated the matter from about September onwards. Ultimately, then, these proceedings are brought in October 2020.
45However, the whole of the matter must be looked at, and the point is that the Mother was agitating seeking a change to those orders from 2019.
If these paragraphs were intended to comprise his Honour’s consideration of the mother’s explanation for the delay, then they are misplaced and inadequate.
The final orders were made on 25 February 2019, and yet it was not until 9 October 2020 that the mother initiated the proceedings seeking reopening of the matter pursuant to r 16.05.
She plainly did nothing to agitate a change to the final orders between 25 February 2019 and September 2019, when she did engage solicitors because the maternal grandmother was preventing the children spending any time with her.
Those solicitors arranged mediation which culminated in a s 60I Certificate issued on 23 December 2019, stating that it would not be appropriate to continue the family dispute resolution.
There is then no evidence, not even in the mother’s own affidavit, of anything done that could be described as “agitating a change to the orders”, until the proceedings were instituted in October 2020.
Thus, it was not open to his Honour to make the finding that he did in [45]. Indeed, the obvious finding was the opposite, and there was in fact no explanation, adequate or otherwise, for the delay in filing the application.
If on some basis it can be said that his Honour found that the mother had adequately explained the delay, then there is clearly merit in this ground of appeal, but to repeat, in my view, no such finding was made by his Honour. His Honour though should have made a finding that the delay was not adequately explained, and to that extent his Honour has erred.
Ground 1e
This is not a competent ground of appeal in that it is nothing more than a general assertion. Further, it is entirely unclear what further complaints are being suggested in the exercise of his Honour’s discretion, beyond the specific complaints in Grounds 1a, b and c.
The maternal grandmother’s summary of argument does not help much either, in that primarily it refers to the previous matters set out in the document, without specifically addressing the ground.
The summary of argument does touch on one matter which needs to be addressed in considering his Honour’s exercise of discretion, namely, whether there were material arguments available to the mother that might reasonably lead to the making of an order different to that sought to be set aside.
Pausing there, there are a number of Full Court decisions which identify the factors that should be considered when exercising the discretion pursuant to r 16.05(2)(a), including Barbey & Tuttle (2013) FLC 93-534, and Malak & Malak (2016) FLC 93-718. Although for some reason his Honour chose instead to cite and refer to the decision of a Judge of the Federal Circuit Court of Australia, fortunately the Judge in that case applied the same principles espoused in the Full Court decisions.
In summary, although the discretion to be exercised is unfettered, the following factors are to be considered:
(1)A reasonable explanation for the applicant’s absence at the hearing.
(2)Material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside.
(3)No prejudice to the party with the benefit of the orders.
And, in that context, the delay, if any, in bringing the application.
As to the issue of the material arguments, his Honour did address this at [35]–[39], and found in effect that the mother’s circumstances had changed for the better such that she could mount arguments to change the final orders.
The maternal grandmother challenged that by referring to the incidents on 17 February 2020, and suggested that they go to whether the mother’s circumstances had in fact changed to the extent claimed. However, because the mother denied the allegations in relation to what occurred on 17 February 2020, that left it open to the primary Judge to proceed on the basis that the mother had reasonable arguments available because she was not required to establish those arguments would be successful.
I should also note that his Honour addressed the issue of the prejudice to the maternal grandmother ([40]). His Honour correctly identified that there would be substantial prejudice intrinsic to the maternal grandmother if the proceedings were reopened, but that was not what is being referred to; it is issues such as the availability of witnesses, or the effects of the passage of time on memories.
In conclusion then, although it could be said that the mother had material arguments that could lead to the orders being changed, and there would be no prejudice to the actual litigation, the absence of any reason for the mother not attending the hearing, and there being no explanation for the substantial delay in bringing the application, should have led his Honour to dismiss the application.
Thus, explained and elaborated on in this way, this ground of appeal also has merit.
In these circumstances, that part of the appeal against the order permitting the mother to proceed with the application pursuant to r 16.05(2)(a), must be allowed, and that order set aside.
The Rice v Asplund issue
There are two grounds of appeal that address his Honour’s order in relation to this issue, namely Grounds 1d and 2, as set out in [30] above.
Ground 1d is another incompetent ground of appeal; it is a general assertion which does not identify the specific errors alleged to be made by his Honour in the exercise of his discretion.
This difficulty is overcome somewhat by the maternal grandmother’s summary of argument, but that is not how an appeal should be run. Nevertheless, I propose to address the complaints as they appear in the summary of argument.
The rule in Rice v Asplund as expressed by the Chief Justice in that case is as follows:
[7]The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material… These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
In the search for sufficient changed circumstances here, his Honour found as follows:
48The circumstances that warrant the change here are that following the orders of 25 February 2019, the Mother or the Father or between them have ended the toxic relationship that was between them. That is a significant change.
49In addition, one of the matters relied upon was the Mother's different position as to drugs. There is some difficulty about that, because on the Mother's sworn account she is not a drug user, yet it is quite clear or clear enough that everyone else says the Mother had a problem with drugs.
50What we now have, as opposed to the evidence before the Court in February 2019, is that the Mother has been abstinent of illicit drugs for a period of three months, and that the drug that has been detected in her system is methadone, which, on the evidence, she has prescribed and is using in accordance with that prescription.
51The other significant matter is at the time of the February orders, the Mother's accommodation was in chaos. She has deposed that she now has stable and what I will call ordinary rented accommodation.
52Further the issue of the Mother's mental health was, to adopt the words of Ms Kildea, central to the Maternal Grandmother's case as it was commenced and as it was pursued in February of 2019. What is significant is that it appears for the first time the Mother has sought the assistance of mental health counselling to deal, hopefully, with not only any intrinsic mental health issues, but the inevitable consequences of being a victim of family violence.
53The other matter that is, in my view, a significant change of circumstance is that the orders of 25 February 2019 contemplated a continuation of supervised time as agreed between the Maternal Grandmother and the Mother. As at this point of time, that is simply impossible for that to occur.
The argument of the grandmother is that all but the last change are not relevant because they only pertain to the “personal position of the father and the mother”, and there is no apparent nexus to the best interests of the children.
However, as the ICL submits, that argument is without any reasonable basis. They are matters that clearly relate to the assessment of the risk posed by the mother to the children. The mother’s ability to remain abstinent from illicit drugs, to continue to engage in mental health services, including to deal with being a victim of family violence, to end her dysfunctional and toxic relationship with the father, and to provide a safe environment if the children are permitted to spend unsupervised time with her, are highly relevant to what is in the best interests of the children.
As to the last change identified by his Honour in [53], there can be no doubt of the nexus with the best interests of the children, and to be fair, the maternal grandmother did not suggest otherwise.
Thus, there are plainly relevant changed circumstances which provide a basis for reopening the litigation, and no error by his Honour is demonstrated in that regard.
There is of course Ground 2, but that ground has no merit either.
It was plain from the affidavit of the mother filed on 9 October 2020 that the relationship between the mother and the father had ended, and in the responding affidavit of the maternal grandmother filed on 4 December 2020, she did not challenge that, and indeed deposed in paragraph 52 to the father having a new partner. Thus, it was not in issue in the proceedings, and there can be no denial of procedural fairness to the maternal grandmother in how his Honour dealt with this.
In these circumstances this aspect of the appeal must be dismissed.
THE SECOND APPEAL
The grounds of appeal are as follows:
Ground 1(a) – The primary judge erred and his discretion was miscarried in permitting the Mother to spend time with the children in circumstances where there was cogent and compelling evidence before the court to the effect that the mother had attempted a home invasion of the appellant’s home, in the presence of the children, and the children were traumatised thereby.
Ground 1(b) – The primary judge erred and his discretion was miscarried in permitting the Mother to spend time with the children in the absence of any, or any sufficient evidence, that a resumption of interim time with the Mother was in the best interests of the children.
Ground 1(a) is a weight challenge, and the difficulties in succeeding on such a challenge are well-known. For example, in the High Court decision of Gronow v Gronow (1979) 144 CLR 513, Stephen J said this at 519–520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. …
His Honour was clearly aware that the alleged incidents on 17 February 2020 were the primary basis for the maternal grandmother’s opposition to there being an order for the children to spend any time at all with the mother, whether supervised or unsupervised. However, equally clearly, and despite the mother’s denial of the allegations, his Honour took the seriousness of these alleged incidents into account in reaching his decision (e.g. see [6]).
His Honour then dealt with this as follows:
7I am dealing with this on an interim basis. The competing cases for residence of these children, between the Mother and the Maternal Grandmother, centre on a much wider factual basis than the events of 17 February 2020, though it is likely to be a significant matter in these children's lives. It is for those reasons why I would not consider time other than supervised, and supervised by a specialist facility with expertise in children's welfare, and sadly, inevitably, in this day and age, when dealing with children's welfare, the exposure of children to violence and family violence is, unfortunately, a necessary part of that expertise.
8I am satisfied that B Contact Centre has appropriate and significant expertise to deal with the children's welfare in a supervised visit, in the circumstances that those events of 17 February 2020 may well have occurred as the Maternal Grandmother says. …
…
11Balancing those two risks, that is, of putting the children's relationship with their Mother on further hold until August 2021, by which time we are getting on for three years from when they spent regular time with their Mother, and the risk that children will be traumatised in the supervised contact setting. My finding is that the least worst scenario is the resumption of supervised time at B Contact Centre on a monthly basis. …
I note that his Honour also took into account the circumstance that in December 2020, the maternal grandmother consented to supervised time at B Contact Centre, and thus can be taken to have been of the view that there was no unacceptable risk to the children spending supervised time at that facility.
Further, his Honour took into account that the first period of supervised time at B Contact Centre in February 2021, “went well, and both the children and the mother behaved appropriately, and in particular the children were affectionate with their mother” ([9]).
His Honour was entitled to take this into account despite the maternal grandmother then saying that she made a mistake in agreeing to the supervised contact occurring. The fact is that it did, and that it went well.
In these circumstances it has not been demonstrated that his Honour made any appealable error, bearing in mind that this was an interim order. To adopt the words of Stephen J in Gronow, there is no error of law or mistake of fact, and thus for this Court to arrive at a different conclusion could only be due to a difference of view as to weight, and here that does not justify a reversal of his Honour’s order.
As to Ground 1(b), there is no meaningful submission made in support of this ground. The most that is said is that the maternal grandmother relies on the alleged incidents on 17 February 2020 to justify this ground. However, to repeat again, there is a dispute as to those allegations, and his Honour was unable to make a finding in relation thereto, given this was an interim hearing and the parties had not had the opportunity to explore the alleged incidents with necessary cross-examination. Nevertheless, as referred to above, his Honour proceeded on the basis that there was “real risk that that is one of the matters that the children have had to deal with in their lifetime” ([6]), and his Honour balanced that risk with the need to promote a meaningful relationship between the children and the mother, and found that supervised time through a professional supervision service was in the best interests of the children ([11], and see [7]).
In these circumstances this appeal must be dismissed.
COSTS
As can be seen, the appeal against the order pursuant to r 16.05 is being allowed, but the appeal against the dismissal of the application pursuant to the rule in Rice & Asplund is being dismissed as is the appeal against paragraphs 2, 3, 4, 6, 7 and 8 of the interim orders made on 18 March 2021. I note again of course that in reality that appeal was only against paragraphs 2, 3, 4 and 6.
In relation to the successful appeal, the maternal grandmother, the mother and the ICL all seek costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth), and it is appropriate that those certificates be granted. There is no order for costs being made, and the appeal is being allowed on a question of law.
In relation to the unsuccessful appeals, the mother sought an order for costs against the maternal grandmother, but given that all parties are receiving legal aid, there is no point in such an order being made. In that regard I note that for that same reason, the ICL did not seek an order for costs.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 13 October 2021
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