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…
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- Searson & Searson [2017] FamCAFC 119
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- [2017] FamCAFC 119
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CaseChat Overview and Summary
In Searson & Searson, the mother appealed against the decision of the primary judge who dismissed her application for different final parenting orders concerning her children. The mother sought to relocate herself and the children interstate and alleged a significant change in circumstances since the making of previous consent orders. The primary judge considered the rule in Rice & Asplund as a preliminary issue and concluded that there was no sufficient change in circumstances to justify a hearing. The mother argued on appeal that the primary judge's conclusion was not supported by evidence and that she had presented a compelling prima facie case of changed circumstances.
The legal issues the court was required to decide included whether the primary judge erred in concluding that there was no sufficient change of circumstances to justify a hearing and whether the mother had presented a compelling prima facie case of changed circumstances. The court found that the primary judge's conclusion was not supported by evidence and that the mother had presented a compelling prima facie case of changed circumstances. The court held that the primary judge should have considered the evidence of changed circumstances before determining whether there was a sufficient change of circumstances to justify a hearing.
The court allowed the appeal, set aside the primary judge's orders, and referred the matter to a different judge for orders and directions to prepare the matter for trial. The court also granted costs certificates to both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The court held that it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother and the father in respect of the costs incurred by them in relation to the appeal.
The legal issues the court was required to decide included whether the primary judge erred in concluding that there was no sufficient change of circumstances to justify a hearing and whether the mother had presented a compelling prima facie case of changed circumstances. The court found that the primary judge's conclusion was not supported by evidence and that the mother had presented a compelling prima facie case of changed circumstances. The court held that the primary judge should have considered the evidence of changed circumstances before determining whether there was a sufficient change of circumstances to justify a hearing.
The court allowed the appeal, set aside the primary judge's orders, and referred the matter to a different judge for orders and directions to prepare the matter for trial. The court also granted costs certificates to both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The court held that it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother and the father in respect of the costs incurred by them in relation to the appeal.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The Orders of Judge Harland on 9 December 2016 be set aside.
3.
The father’s interim application contained in paragraphs 1 and 2 of his Response filed 18 November 2016 be dismissed.
4.
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.
5.
Each party bear their own costs of and incidental to this appeal.
6.
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.
7.
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.
Background
Background to the litigation
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) 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).
Evidence
Evidence Before The Court
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)
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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