Searson & Searson
[2017] FamCAFC 119
•5 July 2017
FAMILY COURT OF AUSTRALIA
| SEARSON & SEARSON | [2017] FamCAFC 119 |
| FAMILY LAW – APPEAL – the rule in Rice & Asplund – where previous consent orders had been made with respect to the parenting arrangements of the children – where the mother subsequently filed an application seeking different final parenting orders – where by that application, the mother sought to relocate herself and the children interstate – where the mother alleged a significant change in circumstances – where the primary judge determined the rule in Rice & Asplund as a preliminary issue – where the primary judge made orders dismissing the mother’s application on the basis that there was no significant change of circumstances – where the primary judge concluded that many of the issues raised by the mother, were raised at the final hearing or could have been raised – where there was no evidentiary foundation for her Honour’s conclusions – where the mother presented a compelling prima facie case that circumstances relevant to co-parenting had changed since the making of the consent orders – appeal allowed – re-exercise of primary judge’s decision. |
| Family Law Act 1975 (Cth) s 62G Federal Proceedings (Costs) Act 1981 (Cth) ss 117(1), 117(2A) |
| McEnearney & McEnearney (1980) FLC 90-866 Marsden & Winch (2009) 42 Fam LR 1 Miller & Harrington (2008) FLC 93-383 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 Walter & Walter [2016] FamCAFC 56 |
| APPELLANT: | Ms Searson |
| RESPONDENT: | Mr Searson |
| FILE NUMBER: | MLC | 4487 | of | 2014 |
| APPEAL NUMBER: | SOA | 113 | of | 2016 |
| DATE DELIVERED: | 5 July 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Murphy, Kent & Loughnan JJ |
| HEARING DATE: | 4 July 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 December 2016 |
| LOWER COURT MNC: | [2016] FCCA 3195 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bartfeld QC with Ms Johnston |
| SOLICITOR FOR THE APPELLANT: | Forte Family Lawyers |
| THE RESPONDENT: | In person |
Orders
The appeal be allowed.
The Orders of Judge Harland on 9 December 2016 be set aside.
The father’s interim application contained in paragraphs 1 and 2 of his Response filed 18 November 2016 be dismissed.
The mother’s Initiating Application filed 5 September 2016 and the father’s Response filed 18 November 2016 be referred to a judge of the Federal Circuit Court other than Judge Harland for orders and directions to prepare the matter for trial.
Each party bear their own costs of and incidental to this appeal.
The Court grants to the mother 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 mother in respect of the costs incurred by the mother in relation to the appeal.
The Court grants the father 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 father in respect of the costs incurred by the father in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Searson & Searson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 113 of 2016
File Number: MLC 4487 of 2014
| Ms Searson |
Appellant
And
| Mr Searson |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
MURPHY J
[1]As was made clear at the oral delivery of these reasons, citations and headings have been added to the settled reasons as have quotations the content of which was specified orally.
In May 2015, the parents of three boys – X and Y, twins then aged seven, and Z then aged five – agreed to co-parenting arrangements consequent upon the end of their relationship which had occurred about two years previously. Their agreement was perfected by final consent orders made on 25 May 2015.
The consent orders saw the children living with their mother and spending time with their father, after some initial periods of specified time, for five nights per fortnight; one night in one week and four nights in the other week as well as block periods of time in school holidays.
On 5 September 2016 the mother filed a subsequent application seeking different final parenting orders. By that application, the mother sought orders, the central thrust of which, was that the children live with her in South East Queensland rather than in Melbourne where she, the father and the children had been living. The orders sought specified the time she proposed for the children to spend with their father in that eventuality. They included time both in South East Queensland and in Melbourne. The mother also sought an interim order that a family report be prepared pursuant to s 62G of the Family Law Act 1975 (Cth)(‘the Act’) by one of three nominated report writers.
The father opposed that interim order and, in response to the mother’s application for final parenting orders, sought an order that the mother’s application be dismissed and that “... the Orders dated 25 May 2015 remain in full force and effect.”
For reasons deposed to at the time, the mother sought that the hearing of her application be expedited. On the return date of that application it appears that the parties (who were then each represented by legal practitioners) agreed that a question arose pursuant to what is called “the rule in Rice & Asplund” and agreed that this issue should be dealt with “as a preliminary matter”. The hearing of the mother’s application, confined to that issue, was heard by Judge Harland on 6 December 2016. On 9 December 2016, her Honour pronounced orders dismissing the mother’s application for final parenting orders. From that order, the mother now appeals.
For the reasons I am about to give, I am of the view that her Honour erred in the application of principle and that the conclusion reached by her Honour that there was no material change in circumstances was not reasonably open to her Honour on the evidence before her. In my view error is established with the consequence that the appeal should be allowed.
The Trial Judge’s Reasons
The findings underpinning her Honour’s determination can be found in three paragraphs of her Honour’s Reasons. They should be quoted in full:
24.Having considered the material relied on by the parties and the oral submissions I am not satisfied that the mother has established a prima facie case that there has been a significant change of circumstance. Many of the issues the mother raises were issues raised at the time of the final hearing or which could have been raised.
25.The respondent submits that whilst the mother’s partner did not swear an affidavit in the 2015 proceedings her relationship with him was a well-known fact and she must have contemplated was [sic] the future of her relationship at that time. It was a long distance relationship then as it is now. He says that what the mother is doing by seeking to raise the relocation now is avoid the recommendation in the family report.
26.The mother has acknowledged in her affidavit that there have been three occasions where she has not facilitated time between the father and the boys in accordance with the orders. The father says there have been other times as well. The father says it amounts to four weeks. The mother’s evidence raises concerns about her capacity to facilitate the father’s relationship with the children whilst she offers significant time in her proposal, the court remains concerned about her willingness and capacity to do that once she has relocated. I acknowledge that she does not need to establish that she would be successful in her application but in these concerns together with her failure to establish a significant change of circumstance given the fact that her relationship existed at the time of the final court orders (the relationship has progressed but she herself says that the relationship was a committed one at the time the final orders were made) as well as this, the financial issues existed at the time I am not satisfied that allowing further litigation which would involve the children being subjected to a further family report as well as the conflict between the parents continuing would be in the children’s best interests.
Rice & Asplund Applied as a “Preliminary Matter”
It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.[2]
[2]Rice & Asplund (1979) FLC 90-725; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383.
In the important decision of SPS & PLS,[3] (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”.[4] It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below.
[3](2008) FLC 93-363 approved in Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383; Walter & Walter [2016] FamCAFC 56.
[4]SPS at [46].
In SPS, Warnick J went on to hold[5] that:
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[5]At [48].
His Honour went on to say this:[6]
… [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(Emphasis added)
[6]SPS at [81].
Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.[7]
[7]Rice & Asplund at 78,905 per Evatt CJ.
Thus, for example, Nygh J said in McEnearney & McEnearney:[8]
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
[8](1980) FLC 90-866 at 75,499.
To similar effect, Warnick J said in SPS:[9]
Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
(Emphasis added)
[9]SPS at [58].
The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.
In Marsden & Winch[10] the Full Court said:
[10](2009) 42 Fam LR 1 at [57], [58].
[57]. In Miller … the court posed the question:
[105] Adapting the language used by Warnick J in SPS and PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58]. That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
(Citations omitted)
A “Prima Facie” Case of Changed Circumstances?
The Proposed Relocation
The essence of the father’s case before her Honour was that the mother’s evidence did not pass the first of those two thresholds. He argued that the mother did not establish a prima facie case that there had been a change of circumstances. As can be seen from [24] of her Honour’s Reasons, her Honour appears to have accepted that contention. I consider that this finding was not open to her Honour on the evidence before her.
In argument before this Court, the father – who was represented below but appeared for himself before this Court – repeats that central contention in seeking to support her Honour’s judgment. His contention appears to rest upon two propositions.
First, he says that the mother’s affidavit filed on 1 December 2016[11] deposes to her and her current partner having “been in a committed relationship for approximately 2.5 years”.[12] He says the mother’s evidence is that she met her current partner on 28 May 2014. The argument proceeds that she had a committed relationship with her partner when the consent orders were made and has a committed relationship with him now and that, accordingly, nothing has changed.
[11]Her Honour refers incorrectly to the filing date at [22] of the Reasons as 1 December 2015.
[12]Reasons [22]; Mother’s Affidavit filed 1 December 2016, paragraph 17(b).
The second limb of the father’s argument before this Court is that the mother asserts that she is in “dire” financial circumstances now and this represents no change to her position at the time that the consent orders were made.
Prior to the making of the consent orders the mother filed an extensive affidavit in relation to her then application for parenting orders.[13] Broadly expressed, the parenting issues pertaining at the time the consent orders were made involved what was described as a “mental breakdown” on the part of the father and his hospitalisation as a consequence, and the aftermath of that significant event which resulted in the parents’ separation and expressed anxiety on the part of the mother about the father’s capacity to care for the children. Equally, the circumstances pertaining at that time involved suggestions by the father and consequent denials by the mother of some recalcitrance on her part in the provision of time between the children and the father.
[13]Mother’s Affidavit filed 20 May 2015.
Under the heading “Future Parenting Arrangements” the mother mapped her proposals for the co-parenting of the children. Those proposals were to the effect that the “children remain living with [her] and will not go more than seven days without spending time with [the father]”. In dealing with the “reasonable practicability” of the orders proposed by her the mother deposed that:
… [the father] and I live approximately six and a half kilometres apart. [The father] is approximately eight and a half kilometres from the children’s school and I am approximately one and a half kilometres from the children’s school. As a consequence, my proposed final parenting orders will not interrupt the children’s, my or [the father’s] day to day routine.[14]
[14]Mother’s Affidavit filed 20 May 2015, paragraph 62.
At the time the consent orders were made, the father was aware that the mother had formed a relationship with her new partner. Equally, however, it is abundantly plain from the mother’s affidavit material that no part of the extensive matters to which she deposed prior to the making of the consent orders involved living permanently with her now partner or postulated a significant future role for her now partner in the children’s lives or involved her moving to South East Queensland.
The trial judge refers to some of the father’s arguments before her emanating from a family report which had been prepared on 16 September 2014. The report appears to have formed the foundation upon which the parties agreement and the consent orders were built. Her Honour records at [21] of the Reasons:
… The father points to [69] of that report where [the report writer] says the mother’s application indicates a “high desire of control and a low level of trust”. She said there was no evidence that the father cannot make sound decisions for the children or that he would want to relocate. She stated that neither parent should “relocate to an area that renders it virtually impossible for the other to spend time with the children”.
(Bold emphasis added)
Nowhere in that family report is any factual foundation offered which might provide the reason for providing any opinion about relocation. No such issue was joined between the parties at that time. In any event, to the extent that any such purported issue is referenced to a party, it is referenced to the father rather than the mother (although, again, the foundation for any such opinion is not given). The gravamen of the mother’s evidence at that time was that she was in a relationship with her current partner and that that relationship was developing. Notwithstanding the fact that relocation was not then in issue between the parties, the report writer then goes on to provide the purported opinion:
Neither parent should … relocate to an area that renders it virtually impossible for the other to spend time with the children.[15]
[15]Family Report provided on 16 September 2015, paragraph 69.
A number of issues emerge from that statement. It is not known what area the report writer had in mind that would make it “virtually impossible”[16] for the children to spend time with the other parent. Certainly it is not a statement applicable to major conurbations on the eastern seaboard. Further, and in any event, whether or not a parent should relocate with the children is an issue for the court; it is not the province of opinions arising from expertise and experience arising from qualifications as a psychologist.[17]
[16]Emphasis added.
[17]See what was said, for example, in Simmons and Anor & Kingsley (2014) FLC 93-581 and the numerous authorities cited in that decision in respect of the parameters for, and use of, family reports.
The evidence before the court at the time the orders were made and, axiomatically, the evidence upon which those orders were founded needs to be compared and contrasted with the evidence before her Honour in respect of the central issue which confronted her.
In an affidavit in support of the issue agitated before her Honour, the mother deposed:[18]
10.I have re-partnered. My partner … is 43 years old having been born [in] 1973. We have been in a relationship for over two years, since […] 2014.
11.I am seeking to a change [sic] to Final Orders of 25 May 2015 to permit me to relocate from our residence in Melbourne to [South East Queensland] where the children will live with [the partner] and I and spend some weekend time and half of school holidays in Melbourne and in [South East Queensland] with [the father].
12.The children will fly to Melbourne six times a year. We will split the cost of four flights and I will meet the entire cost of two flights.
13.The children have a joint mobile phone which they can use to phone and Skype their father. Each of the children have an IPad which can also be used to Skype their father at any time they wish.
14. My partner … runs a business in [South East Queensland] and I would like the children and I to relocate to live with him.
[18]Mother’s Affidavit filed 5 September 2016.
In that affidavit the mother goes on to provide details of the cohabitation that would occur in South East Queensland, the activities the children would be engaged in and the like.
The mother’s new partner also filed an affidavit in the proceedings before her Honour. That affidavit deposes to him being the managing director of his own company which he had run in South East Queensland over a period of about 14 years during which time the business has grown. It now employs 15 full-time staff and 25 permanent sub-contractors. He deposes to having “a reputable client base with the majority of my work undertaken for [businesses] in … [South East Queensland]”.[19]
[19]See Affidavit of the mother’s partner filed 5 September 2016, paragraph 2.
As to the relationship with the mother and the children, the mother’s partner deposes:
4.I met [the mother] [in] 2014 through mutual friends. We commenced a long distance relationship travelling between Melbourne and [South East Queensland]. During this time our relationship has deepened, sharing the same values and beliefs. We enjoy spending time together and as a family.
5. I had a slow introduction to [the three children] giving the boys time to get to know me and me getting to know them. During the past two and a bit years I have developed a great relationship and strong bond with the boys. …
…
7. [The mother] and I would like to make a permanent home as a family and we would also like to have another child. …
The mother is currently 41 years of age and deposes to wishing to have a child with her new partner and, that, given her age, there is a limited time frame to avail her and her partner of that opportunity. Her partner deposes that he shares that desire.
The Mother’s Financial Circumstances
As to the financial circumstances which constitute the second limb of the father’s argument that no prima facie case of changed circumstances is evidenced, the mother deposes in her affidavit:[20]
[20]Mother’s Affidavit filed 1 December 2016.
27.My financial position has changed since the making of the Final Orders such that it is prejudicing the children’s ability to spend quality time with me and for them to have their mother available to attend to their day to day needs. This has led me to become increasingly reliant on my mother for assistance and has significantly increased my stress.
28.At the time the Final Orders were made, I was working part-time as a (omitted) in my own business. My hours were flexible and I worked around the children’s needs. This enabled me to deliver the children to school, collect the children from school, take the children to and from extra-curricular activities and attend to their needs on the weekends. It was anticipated that this level of care would continue following the making of the Final Orders and those which documented our property settlement.
29.My and [Mr Searson’s] property settlement was negotiated at the time of the Final Orders, albeit financial Orders were not made until 4 June 2015. By way of the financial Orders:
(a)I received a modest property settlement of $43,937.73 after payment of legal fees; and
(b)[Mr Searson] was to pay me $515 per month by way of child support.
30.As indicated, I had anticipated when we entered into the Final Orders that my care of the children would continue in much the same form, that [Mr Searson’s]’ [sic] child support obligations would be consistently med, that I would be able to obtain full-time work reasonably quickly and that I could rent a property close to a full time role.
31.Unfortunately, many things which were not anticipated at the time that the Final Orders were made have occurred. These have restricted the children’s ability to have me spend time with them and attend to their day to day needs which was also not anticipated and the same has caused me great financial strain and stress.
Thereafter in that affidavit, the mother goes on to depose to the necessity for her to work one full-time job and two part-time jobs and the expenses met thereby occasioned, she deposes, by the father’s non-payment, or erratic payment of child support. At paragraph 28 of his affidavit before her Honour, the father deposes:[21]
Due to my sporadic income, I admit that I have had difficulty in maintaining regular child support payments. I was hopeful that I could reinvigorate my business once I was fully recovered, but I did not have the capital which was needed to do so.
[21]Husband’s Affidavit filed 18 November 2016.
The father informed this Court that he had secured a full time job approximately two months ago and was now earning approximately $110,000 per year.
The mother goes on to depose:[22]
45.I am finding the hours that I must work long and arduous as are the children. This is because they attend before and after school care on a regular basis. Irrespective of the Court granting me relocation I shall finish my full time employment at the end of the year as I cannot continue with the daily grind both with looking after the children and working. …
[22]Mother’s Affidavit filed 5 September 2016.
The Trial Judge’s Conclusions
It would appear from [24] of the Reasons the central foundation for her Honour’s order dismissing the mother’s application is that “[m]any of the issues the mother raises were issues raised at the time of the final hearing or which could have been raised”. Her Honour does not identify any of the “many” issues which the mother now raises which were raised at the time of the final hearing. My reading of the record does not reveal the issues to which her Honour there refers.
Secondly, if her Honour’s reference to issues “which could have been raised”[23] is to have meaning, it can only be by reference to a premise that the mother could have raised relocation to South East Queensland when the consent orders were made but did not. That premise is plainly not open to her Honour on the evidence before her. The mother’s sworn evidence is directly to the contrary and the report writer’s reference to the father relocating was not based on any issue then joined between the parties nor on any matter otherwise referred to within her report.
[23]Emphasis added.
The father acknowledged that to be the case; indeed he made no assertion in any material he put before the court (or information he gave to the report writer) before the making of the consent orders which suggested that relocation was mooted. The evidence was to the effect that the parties were and would be in close geographical proximity and the consent orders were made by reference to that evidence.
At [25] of the Reasons her Honour appears to also found the application of the rule in Rice & Asplund on an acceptance of the father’s argument that the relationship the mother now has and seeks with her partner is materially identical to the relationship which she had leading up to, and at the time of, the consent orders. The difficulty, as I see it, is that there is no evidentiary foundation for any such conclusion and all of the evidence before her Honour revealed in the record is to the contrary.
Further, and with respect to her Honour, I have considerable difficulty in understanding what is mean by the apparent finding in the last sentence of [25] of the Reasons. There is no evidentiary foundation for the apparent finding that the mother was raising something now which she ought to have raised previously. That foundation rests upon the premise just discussed. There was no factual foundation for that premise. Moreover, to the extent that the family report made a “recommendation” about relocation, in my view, it suffers from the difficulties earlier discussed.
Paragraph [26] of her Honour’s Reasons evidences in my respectful opinion a misapplication of the very test which her Honour had indicated she would apply by reason of dealing with the rule in Rice & Asplund question as a “preliminary matter”.
Her Honour had eschewed dealing with the relocation case on its merits in favour of deciding whether the rule in Rice & Asplund had been satisfied as a preliminary matter. No issue as to the merits of the proposed relocation was joined before her Honour; her Honour was concerned only with deciding whether a prima facie case of change of circumstances had been established and, if so, whether it was of sufficient significance so as to engage the parties (and indirectly the children) in a court process designed to determine parenting issues which the parties were unable to determine by agreement for themselves.[24]
[24]Again, the discussion by Warnick J in SPS, above, pertains and is important.
Conclusions
With respect to her Honour, I am unable to see how it was open to her Honour to conclude that there had not been the required change of circumstances. For example:
a)The parties’ agreement founding the consent orders had broken down.
b)That agreement and those orders were predicated upon both parties living within close proximity of each other and in Melbourne. The mother’s application and proposed orders involved her living with the children in South East Queensland.
c)On both parties’ cases considerable difficulties had occurred with the consent orders from the time they were made. Each asserted that the other had not complied with the orders to the children’s detriment. In particular, the mother asserted some recalcitrance on the part of the father in seeking time; the father asserted attempts by the mother to thwart his time.
d)On the father’s case he both desired and anticipated that, consequent upon his regaining his mental health, his business would grow and develop. The mother’s evidence about the expectations of financial support at the time of the consent orders, were consistent with the father’s own expectations. That did not occur. On his own case he was unemployed for a significant period of time. Contrary to the mother’s expectations at that time as to the amount of remunerative work and child caring she could undertake, the mother was working three jobs with a consequential impact upon her levels of stress and a diminution in the amount of child caring she wished to undertake. That was undisputed before her Honour.
e)The mother deposed to that imposing a significant stress upon her and upon her (unchallenged) position as the children’s primary carer. That evidence was unchallenged. The mother deposed to the changes to that position that would occur if she lived with her partner in South East Queensland.
f)At the time of the making of the consent orders and leading up to them, the mother did not posit her now partner as having a significant role in the day to day care of the children. Her case was in essence that the relationship was developing. Her evidence and that of her partner was to the effect that they were each proceeding cautiously with their relationship and its effects for the children. By way of stark contrast, her current application mooted a permanent relationship with her partner and with him having a very significant role in the day to day care of the children.
g)The mother deposed to a significantly increased level of tension and stress on her part due to the father’s asserted inability to financially support the children in accordance with his child support obligations. The mother’s application before her Honour posited a significantly more secure financial future with the consequent reduction in the amount of time spent working by her; a consequently increased role in the lives of the children and a reduced amount of paid childcare for them.
In my respectful view the mother presented a compelling prima facie case that the circumstances relevant to the co-parenting of the children had changed since the making of the consent orders. Equally, in my view, she presented a compelling case that the mooted changes were substantial.
The mother had not acted in a peremptory way in any respect. As it seems to me, she recognised that the issues for the children were significant; postulated a family report and, in the absence of agreement between her and the father, sought that the court determine those significant issues. Whatever be the parameters of the so-called rule in Rice & Asplund, I am entirely unable to see, in the circumstances of this particular case, how the rule could apply so as to prevent that determination by the court.
I consider that her Honour has erred in the manner to which I have earlier referred.
The orders sought by the appellant mother in the event that her appeal is successful postulates this Court re-exercising for itself the decision which confronted her Honour.
Neither party suggests that this court should take account of material in addition to or different from that which was before her Honour such as to permit this Court to make a decision in reference to the circumstances pertaining at the date of the hearing of the appeal. Given the limited ambit of the issue before her Honour, I consider it appropriate for this Court to re-exercise the powers that her Honour had upon allowing the appeal.
In that respect, as can be seen, the mother seeks an order that the matter be listed before a judge of the Federal Circuit Court other than Judge Harland for orders and directions to prepare the matter for trial. The father considers that Judge Harland should remain seized of the matter. I am concerned that findings made by her Honour particularly, for example, at [26] of the Reasons, might at least open the way for an application for her Honour to recuse herself from the hearing of the trial of this action. In my view, the safer and more expeditious course is for the matter to be listed before a judge other than Judge Harland and I would so order.
For the reasons I have just given, I would make the following orders.
(1)The appeal be allowed.
(2)That the Orders of Judge Harland on 9 December 2016 be set aside.
(3)That the father’s interim application contained in paragraphs 1 and 2 of his Response filed 18 November 2016 be dismissed.
(4)That the mother’s Initiating Application filed 5 September 2016 and the father’s Response filed 18 November 2016 be referred to a judge of the Federal Circuit Court other than Judge Harland for orders and directions to prepare the matter for trial.
Costs
At the hearing of the appeal we sought submissions from each of the parties with respect to the issue of the costs of the appeal in the event that the appeal either succeeded or failed.
If, as I propose, the appeal succeeds, the mother sought her costs.
She has been successful and it can be said that the father has been wholly unsuccessful. While the father now represents himself he tells us that he was advised by practitioners at least in the early stages of the preparation of the appeal. Lack of success has been held by this court to be an important, albeit not determinative factor, pursuant to s 117(2A) of the Act because of the nature of an appeal.
In opposing costs, the father relies primarily on his financial circumstances. That factor, too, is not determinative but, in my view at least, is important in the circumstances of this case.
In all of the circumstances, I am not persuaded that the circumstances of this particular appeal justify alteration to the position prescribed by s 117(1) of the Act.
I would order that each party bear their own costs of and incidental to the appeal.
In the event that no order for costs was made, each of the parties asks for a certificate. In my view, the appeal has succeeded on an error of law and for my part, I would so order.
Kent J
I agree with the orders proposed by Justice Murphy and with the Reasons for Judgment his Honour has given. I would only add emphasis to one matter.
In considering the application of the so called rule in Rice & Asplund at the preliminary stage of the proceedings in which the primary judge did in this case, her Honour was bound to assume the acceptance of the mother’s evidence on the question of whether a sufficient change in circumstances was demonstrated. I agree with his Honour’s observations that [24], [25] and [26] of her Honour’s Reasons for Judgment demonstrate error in this respect. On the mother’s evidence it is clear that the mother demonstrated a substantial change in circumstances via the nature and quality of the relationship with her present partner and in respect of her financial circumstances.
For the same reasons, on the re-exercise of the discretion, it follows that the orders proposed by his Honour Justice Murphy ought to be made
Loughnan J
I also agree with the proposed orders and with the reasons given by the presiding judge.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the Reasons for Judgment of the Honourable Full Court (Murphy, Kent & Loughnan JJ) delivered on 5 July 2017.
Associate:
Date: 10 July 2017
26