SPS & PLS

Case [2008] FamCAFC 16

FAMILY COURT OF AUSTRALIA

SPS & PLS [2008] FamCAFC 16

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – With whom a child spends time – An appeal by the father against orders dismissing an application for equal shared care of the parties’ two children – The father had further sought that if equal care was not ordered, his time with the children at least be increased

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Point of law – The rule in Rice and Asplund – Whether the Federal Magistrate erred in the application of the rule in Rice and Asplund – Consideration of some facts to which the learned Magistrate applied the rule in Rice and Asplund and those to which he could have applied it – Misunderstanding by the Federal Magistrate of the broader parameters of dispute in the earlier proceedings where parenting  arrangements had been determined on a final basis – The question of the parameters and the focus of the earlier enquiry may have had some bearing on the Federal Magistrate’s assessment of the degree and sufficiency of change in circumstances since the final order – Significant change of circumstances – Wishes of the children not identified by the Federal Magistrate as a factor that fell for consideration as a new circumstance – Detailed analysis of the rule in Rice and Asplund  

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Evidence – On appeal it was argued by the father that the Federal Magistrate failed to admit into evidence a court ordered Family Report and a consequent failure to give any weight to the wishes of the children and the recommendation of the Family Court Counsellor – Whether the Family Report should have been admitted, or in fact was by necessary implication, admitted – Whether, since the learned Magistrate proceeded to address the contents of the Report, in the alternative to his refusal to admit it; there were any consequences, in particular a denial of natural justice, of a failure to admit the report – Argued that the Federal Magistrate failed to sufficiently explain the rule in Rice and Asplund to the father who was self represented at trial
Family Law Act 1975 (Cth); Part VII; ss 60B; 60CA; 61DA; 64B; 65DAA; 69ZU; 79; 79(A)(1A)
Family Law (Shared Parental Responsibility) Act 2006 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
In the Marriage of Bennett (1991) FLC 92-191
In the Marriage of D and Y (1995) FLC 92-581
In the Marriage of McCabe (1995) FLC 92-634
In the Marriage of McEnearney (1980) FLC 90-866
In the Marriage of F and N (1987) FLC 91-813
In the Marriage of Newling and Mole (1987) FLC 91-856
In the Marriage of Rice and Asplund (1979) FLC 90-725
In the Marriage of Zabaneh (1986) FLC 91-766
Sommerville v Sommerville (2000) FLC 93-042
APPELLANT: SPS
RESPONDENT: PLS
FILE NUMBER: DNM 2236 of 2001
APPEAL NUMBER: NA 79 of 2007
DATE DELIVERED: 28…

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SPS & PLS [2008] FamCAFC 16
Case
[2008] FamCAFC 16
Decision Date

CaseChat Overview and Summary

In the case of SPS & PLS, the father appealed against orders made by a Federal Magistrate which dismissed his application for equal shared care of his two children with the mother, and which did not increase the time he spent with the children. The father argued that the Magistrate had erred in applying the rule in Rice and Asplund, had failed to properly consider the wishes of the children and had not sufficiently explained the rule to him. The court considered the legal issues, including the parameters of the earlier proceedings where parenting arrangements had been determined on a final basis, the sufficiency of change in circumstances since the final order, and whether the Federal Magistrate erred in the application of the rule in Rice and Asplund.

The court found that the Federal Magistrate had misunderstood the broader parameters of the earlier dispute and had not sufficiently explained the rule in Rice and Asplund to the father. The court held that an order dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of "Parenting Order" as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applied to the decision to dismiss an application to vary, because of the terms of s 60CA which are: Child's best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. The court found that the Federal Magistrate had failed to consider the wishes of the children as a new circumstance and had not sufficiently explained the rule in Rice and Asplund to the father. The court held that the appeal was allowed, the orders of the Federal Magistrate were set aside, and the father's application was remitted for rehearing by a Federal Magistrate other than Federal Magistrate Lucev.

The court also found that the Federal Magistrate had not denied natural justice by refusing to admit the Family Report into evidence, as the Report had been impliedly admitted into evidence. The court held that the Federal Magistrate had proceeded to address the contents of the Report, and there were no consequences of a failure to admit the report. The court granted costs certificates to the father and the mother pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 and section 6 and 8 of the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That the orders of Federal Magistrate Lucev made 2 November 2007 be set aside.

3.

That the application of the father filed 3 November 2006, in so far as therein the father sought orders that the children spend further time with him than provided for in orders made 12 December 2003 in the Federal Magistrates Court of Australia, be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Lucev.

4.

That the court grants to the appellant father a costs certificate pursuant to the provisions of section 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.

5.

That the court grants to the respondent mother a costs certificate pursuant to the provisions of section 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.

6.

That the court grants to each of the appellant father and the respondent mother costs certificates pursuant to the provisions of section 8 Federal Proceedings (Costs) Act 1981 being certificates that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise payments under that Act to each of the appellant father and the respondent mother in respect of the costs incurred by each in relation to the new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A footnoted reference to the first sentence of paragraph 19 was to s 69ZU of the Family Law Act 1975 (Cth) (“the Act”). That section provides:Evidence of family consultants The court must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence. During the trial no one had made any reference to that section. I observe in passing that the section was introduced by the 2006 amendments which introduced a raft of changes to Part VII of the Act (dealing with applications relating to children). Those included procedural changes that were likely to bring Family Reporters to court on the first occasion in which a case came before the court and at which it was unlikely that a written Report would have been prepared, but oral opinions might well be sought and given. That was not previous practice. I also agree with Mr Gould’s submissions that, prior to those changes, it was not common practice to call the author of the Family Report merely to swear to its contents and verify its authenticity, but rather, only if cross-examination was proposed. I do not have before me any papers from the Federal Magistrates Court file that might indicate lists of documents that were to be relied upon by the parties at trial. I therefore do not know if the Family Report was nominated as such a document prior to the commencement of the hearing. At the hearing, the father was the first witness. The Federal Magistrate asked him formal questions, identified three affidavits and enquired whether the father wished to rely upon them, following which cross-examination by the legal representative for the mother commenced. After establishing that the father had taken material with him into the witness box, the mother’s lawyer asked whether he had the Family Report with him as well and immediately embarked upon a series of questions derived from the content of the Report. During that process, she referred the learned Magistrate to a paragraph of the Report on which she was basing a question. However, the transcript does not disclose that at any stage anyone made a formal application that the Report be received into evidence. Mr Gould primarily argued (as the ground was framed) that a denial of natural justice arose from the refusal of the learned Magistrate to regard the Family Report as in evidence before him. However, in his written summary, he also submitted that the Report had been impliedly admitted into evidence. Mr Lawrence in his written summary merely stated that s 69ZU was “very much a mandatory provision” and that “Strictly speaking therefore the learned Magistrate is correct”. In my view, Mr Gould’s argument receives support from comparison with the way in which this court has treated the terms of s 79(A)(1A) of the Act, which provides that a court may, with the consent of all (relevant) parties, vary a s 79 property order. Cases such as In the Marriage of McCabe (1995) FLC 92-634 and Sommerville v Sommerville (2000) FLC 93-042 show that that consent may be implied from conduct.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:Child's best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467:Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the court. … Again, in In the Marriage of F and N (supra), Nygh J said at 76,136:Indeed it is fair to say, as I have said on several occasions, that basically in custodial matters there is only one rule, and that is that the welfare of the child is the paramount consideration. Everything else is but a reflection of that rule. And in McEnearney (supra) Nygh J further said at 75,499:One comes back to the fundamental principle that the interests of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court to soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court. Thus, in 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. This proposition lay behind what Evatt CJ said in In the Marriage of Zabaneh (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.