ROE & CRESWICK
[2013] FamCAFC 149
•27 September 2013
FAMILY COURT OF AUSTRALIA
| ROE & CRESWICK | [2013] FamCAFC 149 |
| FAMILY LAW – APPEAL – CHILDREN – appeal against Federal Magistrate’s decision to dismiss the father’s interim and final applications to re-agitate parenting proceedings – where the mother had not sought an order for summary dismissal of the father’s application – where the father asserts that the Rice & Asplund application came as a consequence of a suggestion by Federal Magistrate – consideration of the so-called “rule” in Rice & Asplund - where the father was seeking an updated family report – appeal allowed – orders set aside – order made for family report - matter remitted for re-hearing. |
| Family Law Act 1975 (Cth) |
| Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 |
| APPELLANT: | Mr Roe |
| RESPONDENT: | Ms Creswick |
| FILE NUMBER: | ROC | 607 | of | 2012 |
| APPEAL NUMBER: | NA | 17 | of | 2013 |
| DATE DELIVERED:: | 27 September 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 16 July 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 March 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 337 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr R Galloway |
| SOLICITOR FOR THE APPELLANT: | Madden Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr K Wilson QC |
| SOLICITOR FOR THE RESPONDENT: | Harrington Lawyers |
Orders
The appeal be allowed.
In relation to the father’s interim application filed 30 October 2012 it is ordered that a family report be prepared pursuant to s 62G of the Family Law Act 1975 (Cth) by such person as the parties may agree and failing agreement as appointed by the Court.
The father’s application filed 30 October 2012 seeking interim and final orders be remitted to the Federal Circuit Court of Australia to be heard by a judge other than Judge Cassidy. Any further directions in relation to the family report or other matters be heard by that Judge.
There be no order as to costs.
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the appellant father in relation to the appeal against the parenting orders.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent mother in relation to the appeal against the parenting orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Roe & Creswick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 17 of 2013
File Number: ROC 607 of 2012
| Mr Roe |
Appellant
And
| Ms Creswick |
Respondent
REASONS FOR JUDGMENT
Introduction
By notice of appeal filed 5 April 2013, the father appeals one of the orders of Federal Magistrate Cassidy (as her Honour then was) made 8 March 2013. Paragraph 1 of those orders dismissed the father’s application filed 30 October 2012.
This appeal concerns the future litigation of parenting issues between the parties.
The father and the mother have one child, a boy aged twelve. In the father’s application filed 30 October 2012 he asked for final orders that the time spent with the child increase, such time to be specified following the delivery of a family report. The interim application was the application for a family report and that it be prepared by Mr S. By way of response, the mother sought orders for the father’s application to be dismissed, or such further order as the Court deemed fit.
This appeal was heard by me as a single judge pursuant to a direction issued by the Chief Justice under s 94AAA(3) on 5 May 2013.
History
There has already been a previous hearing in relation to parenting issues. The trial was heard in one day on 8 August 2006. The final orders made by Federal Magistrate Baumann (as his Honour then was) on 27 November 2006 provided that the child was to reside with the father from the conclusion of school on Friday until the commencement of school on Wednesday each alternate week. This was a total of five nights per fortnight. Orders were also made for school holidays and special occasions. These orders reflected the opinion of Mr S who had prepared a family report in April 2006. The child was then five years of age and had not yet commenced school.
In the affidavit filed 30 October 2012 (which was before Federal Magistrate Cassidy at the hearing on 4-5 March 2013), the father deposed that he sought the advice of his solicitors in 2008 in respect of a number of matters which had arisen since Federal Magistrate Baumann made parenting orders in 2006. The issues identified were, inter alia:
· that the mother had commenced full-time work and had been leaving the child with her partner;
· that the child had expressed to the father his upset that he did not spend more time with the mother while at her house, and that he did not like being left at the mother’s partner’s work;
· that the child had started to exhibit behavioural problems (ie bedwetting) at both households; and
· that the mother was still allowing the child to sleep in her bed despite the recommendations of the 2006 family report.
In his affidavit the father explained that the mother had refused his requests to attend mediation in respect of these issues, and that further difficulties and conflict had arisen with respect to parenting matters. The father’s solicitor wrote numerous letters to the solicitors for the mother and her solicitors replied. Attempts to resolve the matter through correspondence between the solicitors failed.
As detailed by the father in his written submissions filed 7 June 2013, beginning in 2010, the child expressed the wish to spend more time with the father and his family. Finally, he submits, “…[t]he matter came to a head when, prior to the long week-end in June 2012, the [father] received a letter [dated 23 May 2012], supposedly from [the child], but emanating from the Chaplain’s Office of [the child’s school].”
Though the particulars of the letter will be dealt with later in these reasons, in essence, the letter was of significance in the proceedings for two reasons: first, the child said he had only agreed to an earlier suggestion of the father to increase their time to seven nights a fortnight because he “…didn’t want to hurt [the father’s] feelings…” (reasons for judgment, [14]); second, doubts were raised by the father about the authenticity of the child’s letter as “…[i]ts tone, construction, contents and diction imply some sophistication and maturity instantly belied by the childish signature subscribed.”
Not long after receiving the letter, the father commenced the proceedings in the Federal Circuit Court to which reference has been made from which this appeal emanates.
The mother filed a response asking that the father’s initiating application be dismissed and, importantly for the purposes of the appeal, “…such further orders as [the Federal Magistrate’s Court] deems fit.” The mother also sought interim orders:
1.That within 14 days the father particularises the orders sought by him, failing which the initiating application (Family Law) be dismissed.
2.That the interim application of the father be dismissed.
3.Such further order as this Honourable Court thinks fit.
Though the orders sought by the parties and their supporting material did not signal a Rice & Asplund (1979) FLC 90-725 application, on the first day of the hearing it was decided by the Federal Magistrate that the following morning submissions would be heard on that point.
Reasons of the Trial Judge
As identified by her Honour, in issue was whether the parties should be allowed to proceed with further litigation in the matter, or that the father’s application be dismissed without further hearing.
Having considered the competing proposals of the parties, her Honour considered the earlier reasons for judgment made by Federal Magistrate Baumann delivered on 27 November 2006. Her Honour specifically made reference to Federal Magistrate Baumann’s reliance on Mr S’s family report dated 29 April 2006 and quoted part of his Honour’s reasons as follows:
[17] In particular, I agree with what the report writer says at paragraph 175, namely
“While it might seem ‘logical’ and ‘fair’ to move to an equally shared arrangement at some point, I think there is some merit in maintaining the current proportions of time for the present. [The child’s] primary female attachment is with his mother and he may benefit from spending a little more time in her household until he is older – perhaps for another two years. As boys develop they often develop stronger attachments to their fathers – provided that person is accessible and responsive to them. I think it’s important that [the Father] has a regular and substantial opportunity to promote that attachment – and because he has restructured his work schedule, he can do so.”
(emphasis added)
It should be noted that Mr S did not formally interview the child for the report (reasons of Federal Magistrate Baumann, paragraph 26).
Appreciating the background of the proceedings, her Honour then turned to the rule in Rice & Asplund and related authorities to explain that the father needed to “overcome those obstacles”[10]. Specifically, [11] of the reasons, her Honour quoted [31] to [32] of Gaston & Sankot-Gaston [2009] FMCAfam 478 as it related to the expression of children’s views in proceedings and the need for caution.
Her Honour then undertook a consideration of the father’s case and in doing so, having detailed his arguments, turned to the issue of the letter purportedly written by the child, which was received by the father. It is a typed document. This letter was marked as [an] annexure to the father’s trial affidavit. It is appropriate to repeat it here:
[the child’s school]
Chaplain’s Office
23rd May 2012
Dear Dad and [father’s partner],
I have done some things that I regret doing and know I cannot tell you about them because it is too hard face to face. I think it is important for you to know before the mediation so instead of telling you I am sharing my thoughts in this letter.
There are some lies and half truths that I have told you about Mum and [the mother’s partner] so I could impress you. Some of these I have forgotten but some of them I remember and I feel bad about.
·These lies include saying that sometimes they don’t want to help me with my homework… THIS IS NOT TRUE. They do help me with my homework.
·Sometimes I’ve said that your house is much nicer than ours… but really you’ve both got nice houses. The funny thing is that there seems to be more laughter at Mum and [the mother’s partner’s] house.
·Some times I’ve said to you that Mum and [the mother’s partner] are stupid because they don’t have University Degrees… BUT THIS IS NOT TRUE. They are not stupid.
·I’ve said to you that Mum and [the mother’s partner] are running out of money but this is also not true. Mum & [the mother’s partner] are doing OK.
·Sometimes I have told you that Mum and [the mother’s partner] buy more stuff for [child’s half sibling], and treat her like the favourite child. This is also not true.
·I have also said that I eat heaps of junk food when I am staying with [the mother’s partner] and Mum… THIS ALSO NOT TRUE.
·During the Easter holidays you asked me if I wanted to spend more time with you so that I could have seven days with each family alternately. I said, ‘Yes’ because I didn’t want to hurt your feelings. I actually don’t want to spend every other week with you because I think the current rotation of nine days on, five days on works well.
I am really sorry for speaking behind your back and for telling lies. Please know that I love you very much and will do better.
From
[the child]
[signature appears as handwritten printing on the document]
Though her Honour expressed some concern about the authenticity of the letter, her Honour’s principal concern was the substance of the letter itself. That is, her Honour emphasised that, above all, it was concerning that the father had asked the child where he would like to live and that “[t]his was troubling because the little [child] just does not need to have the pressure of threatened litigation…”.[16]
Her Honour concluded:
17.So given the change in circumstances as I have summarised them and in addition, the mother’s refusal to participate in a family report or any sort of mediation, there is not sufficient change in circumstance to allow the parties to relitigate this matter. In particular, the nature of the change which is only an extra couple of days in every fourteen, taking the child from five days to seven, is not a significant change. It has the potential, in my view, to cause detriment to the child by virtue of the litigation itself.
18.It is no surprise when you look at the correspondence that is annexed to the father’s affidavit that these parties really are not able to get on particularly well. In my view, the father’s time with the child is sufficient to allow him to develop a very positive relationship with that child and that certainly was what was required and requested by the family report writer in the Family Report of Mr [S].
19. For those reasons I am going to dismiss the father’s application.
The Federal Magistrate ordered that the father’s application both on an interim and final basis be dismissed.
Grounds of appeal
In summary, the father’s grounds of appeal as contained in his Notice of Appeal filed 5 April 2013 are as follows:
1.The learned Federal Magistrate did not consider the evidence in its entirety.
2.The learned Federal Magistrate denied the Appellant procedural fairness.
3.The learned Federal Magistrate did not provide sufficient reasons.
4. The learned Federal Magistrate did not provide sufficient reasons.
5. The leaned [sic] Federal Magistrate erred in application of the law.
Ground 1
As will later be seen, in my view the appeal should be allowed. It is unnecessary to undertake a consideration of this ground of appeal as it is without substance.
Ground 2
The issue raised by this ground was that, on an interim basis the mother did not agitate an application for summary dismissal of the application and, therefore, the Federal Magistrate denied the father procedural fairness in dismissing the application.
The father submits that the issue for determination at the hearing was whether a family report should be prepared. That is so, as submitted by the father, because even the broadest of the mother’s interim orders sought, being for “such further or other order as this Honourable Court thinks fit”, “…could never constitute notice of a summary dismissal application.”
Despite there being no interim orders sought by the mother for summary dismissal, the father submits the mother’s decision to run an application in reliance on Rice & Asplund was mounted only when it was suggested by the Federal Magistrate. Reference to the transcript demonstrates this is correct. The mother’s case had been that she was in effect entitled to particulars of the orders sought by the father and that these should be supplied prior to a consideration as to whether the family report should be ordered.
Counsel for the mother submits that there was no denial of procedural fairness in respect of the interim hearing. In support of this, it is emphasised that the solicitor for the father stated on the second day of the trial that she was in a position to make submissions in respect of Rice & Asplund and that at no point was it submitted that her client was disadvantaged or that time was required to prepare further evidence. The transcript also bears this out.
The transcript demonstrates that the father may initially have been placed at a disadvantage as a result of the proceedings evolving into a hearing in reliance on Rice & Asplund and that those proceedings were in no way contemplated by the orders sought by either of the parties, but the solicitors for the father had ample time to prepare as the matter was adjourned overnight. Objection was not taken. At no point was either of the parties denied the opportunity to be heard. This ground of appeal fails.
Grounds 3 (and 4)
The issue raised by this ground was the Federal Magistrate’s consideration of the letter written by the child and addressed to the father. The father submits that “…the inference that [the letter] is the work of an adult is irresistible.” Despite this, and despite expressing uncertainty about who had written the letter, the father submits that her Honour appears to have taken the letter at face value and did not provide sufficient reasons to demonstrate “…how it may be concluded that the child had indicated anything that could be taken as the expression of [the child’s] own view.”
The essence of the reasons of the Federal Magistrate in this respect is as follows [16]:
Now whether that letter was written by the child with the mother’s intervention or whether it was written solely by the child, I do not know. It was certainly concerning. What concerned me was the letter itself. It had the little boy expressing that his father had asked him where he wanted to live. This was troubling because the little boy just does not need to have the pressure of threatened litigation in my view.
In my view the Federal Magistrate provided reasons sufficient to demonstrate how she came to the conclusion in relation to the letter and the decision overall. However, in my view, if anything, her conclusions in relation to the letter should have led her to ordering the family report.
Ground 5
The father’s final ground addresses the Federal Magistrate’s application of the so called rule in Rice & Asplund. The father submits that the Federal Magistrate “…lost sight of the true nature of the “rule” in Rice and Asplund and upon its implications” and, further, that her Honour’s reasons provide “no indication…that her Honour took into account any legislative requirements.”
On the father’s case, the Federal Magistrate erred in law in identifying the proposed “change of circumstances” as being the father’s proposed increase in time from five days per fortnight to seven days per fortnight. As was submitted by the father, “…the issues raised by the child’s letter alone indicated changed circumstances of a material kind…”.
To the extent to which it is necessary, some reference should be made to the decision in Rice & Asplund and later relevant authorities. This so called “rule” emanates from a decision made in 1979. Since then there have been many decisions supporting the philosophy behind the rule. Consistently, despite changes in the legislation, the principle underpinning these concepts is that orders should be made in the best interests of children and that frequent litigation is generally not in their interests.
It is useful to repeat the original statement in Rice & Asplund where the former Chief Justice, Evatt J, after referring to the argument that there must be a substantive change in circumstances, said this [at p 78,905]:
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 (passage quoted in Hayman and Hayman (supra), at p. 75, 680). 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.
(emphasis added)
In SPS & PLS (2008) FLC 93-363, Warnick J, at [48], made the following observations highlighting the differing purposes of the application of the rule in Rice & Asplund, depending on the stage of proceedings at which such an application is brought:
In my view, reflection on the rule shows that:
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv)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 then dealt with “on the merits”.
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)“Shorthand” statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
(original emphasis)
In Marsden & Winch (2010) 42 Fam LR 1, the Full Court comprising Bryant CJ, Finn and Cronin JJ, at [50] of their reasons said:
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
The submission of the father that the Federal Magistrate identified the change in circumstances being the father’s prospective orders for a change in time spent between the father and the child is not the full picture. At the beginning of [17], her Honour states “[s]o given the change in circumstances as I have summarised them…”, that statement is indicative of the reasons identified in the preceding paragraphs which deal with the change in the child’s views, as argued by the father. The Federal Magistrate’s reference to “the change” in her next sentence does not refer to “the change in circumstances” but rather, as referring to the “nature of the likely changes” as set out at [50] of Marsden which her Honour earlier identified in [10] of her reasons.
Correctly, counsel for the mother emphasised the need to consider whether there is an error in the discretion exercised by the Federal Magistrate as opposed to an appeal court considering that another order could have been made. It is not necessary to quote the well-known paragraphs from House v R (1936) 55 CLR 499 at 504-5, Gronow & Gronow (1979) 144 CLR 513 at 519-20 and Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627. These well-known principles were discussed at length by the Full Court of this Court in Scranton & Scranton [2012] FamCAFC 54.
Her Honour ultimately did fall into error in the exercise of discretion. In particular, in not having concluded that a family report was necessary to ascertain the child’s views and provide information about the child’s circumstances, in light of Mr S’s 2006 family report, the questionable origin of the letter signed by the child, and the early stage of the proceedings. The child was five on the last occasion the matter was heard and is now twelve. Clearly there have been some serious difficulties which the parties are unable to resolve themselves. There was no evidence that the exercise itself of a family report would be detrimental to the child but more likely would expose what is in his best interests.
Having determined that the appeal should be allowed, the next question is whether the matter should be remitted for re-hearing or whether this court should re-exercise the discretion.
Conclusions
The interim application involved relatively narrow issues. There being no controversial evidence this court should re-exercise the discretion to save the parties the considerable trouble and expense of a further hearing.
It is in the child’s best interests for there to be an order for a family report, hopefully prepared by Mr S. There should also be directions remitting the matter to the Federal Circuit Court for any necessary hearing as to the details of an order for a family report and as to the future hearing of the matter. Depending on the content of the family report there may be further applications based on the Rice & Asplund principles. If not, the matter would go to trial in the usual way.
I note that Mr S was prepared to see the child [his email dated 6 August 2012] but his position may have changed. It may be that the mother will oppose Mr S preparing a further report or if he is not available then the parties may need to agree on another report writer and failing agreement the Court will appoint an expert.
Costs
At the conclusion of the appeal, submissions were made in relation to costs. Counsel for the father submitted that in the event that the appeal was successful due to an error of law, he sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the costs of the appeal. Counsel for the mother joined in this application.
This appeal has been successful due to an error of law by the Federal Magistrate and this is a matter where I would not otherwise make an order for costs against either of the parties. As such, it is appropriate to make an order for a certificate.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 27 September 2013.
Associate:
Date: 27 September 2013
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