Swenson & Brantley (No.2)
[2020] FamCAFC 205
•19 August 2020
FAMILY COURT OF AUSTRALIA
| SWENSON & BRANTLEY (NO. 2) | [2020] FamCAFC 205 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the appellant’s application to vary final parenting orders made in 2015 – Principle in Rice and Asplund (1979) FLC 90-725 discussed – Where it was not in the child’s best interests for the parenting orders to be reconsidered – Where the primary judge’s approach was fully in accord with well-established principles – Where the primary judge considered and explained why all of the circumstances did not justify a further hearing on the parenting issues – Adequate reasons – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. |
| Family Law Act 1975 (Cth) s 117(2A) |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 D and Y (1995) FLC 92-581; [1995] FamCA 146 Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16 |
| APPELLANT: | Ms Swenson |
| RESPONDENT: | Mr Brantley |
| FILE NUMBER: | DGC | 2935 | of | 2018 |
| APPEAL NUMBER: | SOA | 52 | of | 2019 |
| DATE DELIVERED: | 19 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne (via videolink) |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Austin JJ |
| HEARING DATE: | 19 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 September 2019 |
| LOWER COURT MNC: | [2020] FCCA 2438 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Smith with Mr Kanarev |
| SOLICITOR FOR THE APPELLANT: | Pentana Stanton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Vohra SC |
| SOLICITOR FOR THE RESPONDENT: | Emera Smith Family Law |
Orders made on 19 August 2020
The appeal against the orders of a judge of the Federal Circuit Court of Australia made on 29 April 2019 is dismissed.
The appellant pay the respondent’s costs of the appeal fixed in the sum of $19,124.55.
The injunction made by Strickland J on 3 July 2020 to continue until the costs order is paid in full.
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 Swenson & Brantley (No. 2) 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 52 of 2019
File Number: DGC 2935 of 2018
| Ms Swenson |
Appellant
And
| Mr Brantley |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Aldridge J
Introduction
Ms Swenson (“the appellant”) filed an Amended Initiating Application on 28 February 2019 in which she sought to have the Federal Circuit Court of Australia reconsider orders made by consent on 8 July 2015 as to the parenting of the parties’ child who was born in February 2010.
On 29 April 2019, the matter was listed for a hearing to consider whether circumstances had changed since 8 July 2015 so that it was in the best interests of the child that the parenting orders be reconsidered (in accordance with the well-known principle in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”)). The primary judge was not satisfied that was the case and, on 2 September 2019, dismissed the appellant’s application.
The appellant has appealed from that order and contends that the primary judge erred by applying an erroneous statement of principle (Ground 1), failed to consider the asserted changes of circumstance cumulatively (Ground 2) and failed to give adequate reasons (Ground 3). The last ground is raised only as a corollary to Grounds 1 and 2 and asserts that the reasons are inadequate because they fail to deal with the issues raised by them. For that reason, and somewhat usually, I will not deal with that ground of appeal first.
In order to understand the submissions, it is helpful to set out a brief procedural history followed by the identification of the matters that the appellant had raised as changed circumstances.
Background
The parties met in 2006, were married in 2009 and separated in mid 2010 when the child was approximately three months old.
Mr Brantley (“the respondent”) commenced parenting proceedings in September 2010, which were resolved by consent orders made on 6 June 2011. The child was to live with the appellant and spend specified time with the respondent.
On 18 January 2013, the appellant brought an application seeking to discharge the earlier orders and to reduce the amount of time that the child spent with the respondent. Ultimately, those proceedings were resolved with consent orders being made on 8 July 2015. The effect of those orders was to increase the time that the child spent with the respondent.
The orders made on 8 July 2015 were extensive and were designed to operate until 2027, which was when the child turned 17 years of age. They provided for a progressive increase in the child’s time with the respondent so that from 1 January 2018, overnight and weekend time was to occur over an eight week cycle. Half of each school holiday period, in one week blocks, was also to be spent with the respondent.
The appellant filed an Initiating Application on 27 August 2018, which sought to discharge the orders made on 8 July 2015. The change in circumstances relied upon by the appellant was that she had remarried and that there was a child from that marriage born in 2017. In addition, both parties had moved and were now living further apart from each other, which was said to make mid-week changeovers difficult and tiring for the child.
That application came before a judge other than the primary judge on 5 November 2018. For reasons that are not clear, the entire application was not dealt with but Orders 4, 5 and 6 sought by the appellant were dismissed. These proposed orders sought the relocation of the child from Melbourne to “between [Town O] and [Town C]”, an order permitting the appellant alone to make final decisions about the child’s school and a reduction of the respondent’s school term time to each alternate weekend.
Shortly thereafter, on 28 February 2019, the appellant filed the Amended Initiating Application, which was heard by the primary judge. It sought orders for:
·the appellant to have sole parental responsibility for education and medical issues;
·relocation of the child to the [Town C] region;
·the child to be enrolled in a particular school;
·the child to attend on a psychologist; and
·for the child to spend time with the respondent on alternate weekends and special days.
Her Honour recorded the appellant’s identification of the changed circumstances relied upon by her to justify reconsideration of the orders made on 8 July 2015 in the following terms:
75.Importantly however, the [appellant’s] case is that there has been a significant change in circumstance which justifies embarking on further litigation, namely:
a)the [appellant] and Mr [A] married three months after the final orders were made in 2015, they now have a child together who is one year old and that this represents a paradigm shift in that the [appellant] now needs to parent two children;
b)Mr [A] has obtained a promotion and as he is the primary wage earner, whereas the [appellant] was previously financially independent and earning over $100,000 at the time of the 2015 final orders;
c)as a result of Mr [A’s] move to [Town C] to take up his new role, the family are unable to live together, resulting in the children only seeing Mr [A] two nights per week and the [appellant] not having the emotional support of Mr [A] on a daily basis;
d)when the 2015 final orders were made providing for midweek time, the parties lived much closer together, and the midweek time is already problematic given that the parents have each moved further away from each other and will become more so if the [appellant] is permitted to relocate with [X] to [Town C];
e)changeover currently occurs at [Town L], which is no longer convenient to either party as neither party lives there; and
f)the parties have difficulty agreeing on anything relating to [X] especially medical matters, therefore it is important that one person has the ability to make the final decision.
76.It was also submitted that when one looks at the previous orders made in this proceeding:
a)at the time the 2011 final orders were made, [X] was only two years of age; and
b)at the time of the 2015 final orders were made, [X] was only 6 years of age.
77.In both sets of proceedings, [X] had no voice. It was submitted that now that she is nine years of age, [X] is in a better position to express her own views through a child inclusive conference and/or a family report, and this is a relevant factor in determining whether the [appellant’s] application ought to be permitted to proceed.
The primary judge found that the appellant’s marriage and the birth of her child did not constitute changed circumstances because the marriage was in contemplation at the time of the orders made in 2015 (the appellant and her husband were then engaged to be married three months later) (at [95]). The need for the appellant to parent two children, as opposed to one, was also found not to be a significant change (at [96]).
The appellant’s husband’s new position was found to be more nuanced but, her Honour found that in all the circumstances, it was not in the child’s best interests to be exposed to further litigation.
Did the primary judge apply the wrong principle? (Ground 1)
It is worth stating Ground 1 in full:
The [primary] judge at first instance erred in principle and her Honour’s discretion by failing to consider whether the appellant had established a ‘prima facie case of change circumstances’ such as to warrant ‘a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing’ and confining the scope of her enquiry to whether there had been a ‘significant change in circumstances.
(As per the original)
In her Summary of Argument, the appellant submitted that the primary judge did “not consider whether the [appellant] had established a prima facie case of changed circumstances” but erroneously confined herself to “whether each component of the [appellant’s] case amounts to a ‘substantial change of circumstance’” (Appellant’s Summary of Argument filed on 17 July 2020, paragraph 13). Further, it is asserted that by adopting the phrase “substantial change of circumstance”, the primary judge fell into an error of “looking at the character of the particular events, rather than the sufficiency of the new events” (Appellant’s Summary of Argument filed on 17 July 2020, paragraph 15) and thereby failed to consider whether a prima facie change of events had occurred.
An immediate difficulty for the appellant is that the primary judge never used the phrase “substantial change” but instead referred to a “significant change”.
A second difficulty is that, before the primary judge, the appellant herself described the changed circumstances relied on by her as being substantial (Transcript 29 April 2019, p.12 lines 12 and 18).
More importantly, I consider any differences between the two phrases as semantic and not substantial. As the authorities make clear, the essential point in the application of the rule in Rice and Asplund is the balancing of the new circumstances against the undesirability of further litigation involving the child. The nature of that exercise will depend very much upon the nature of the changes relied upon. Obviously enough, if there are no changes or if the changes are insignificant or unsubstantial, there will be little to justify reconsideration of the earlier orders.
The starting point is Rice and Asplund itself, where Evatt CJ said at 78,905-78,906:
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.
In the oft quoted case of SPS and PLS (2008) FLC 93-363, Warnick J said:
81.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.
…
83.Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
84.Although I do not suggest that, when judgments of the court in which the rule is discussed are read in full, the rule is in any case inaccurately or even insufficiently expressed, sometimes “shorthand” descriptions of the rule are used and are then taken up by others in later cases. Some phrases used seem to better direct attention to the essential question than others. For example, the phrase used by Nygh J in McEnearney (supra), that a court should discourage a parent from coming back to court where there “is really no startling new circumstance” focuses attention on the character of the circumstance itself. Similarly, terms such as “a substantial change in circumstance since the making of an existing order”, as used by the Full Court in D and Y (supra), may tend to focus attention on the character of a particular event or events. The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
(Emphasis added)
These authorities make clear that a change in circumstances is not itself the answer to the question as to whether the earlier parenting orders should be reconsidered, but that those new matters, in all of the circumstances, must be sufficient to justify or to provide for such a hearing.
In Marsden v Winch (2009) 42 Fam LR 1, consistently with the above authorities, the Full Court said:
50.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.
As the respondent points out, although the above cases refer to a significant change in circumstances, other cases describe it differently. In D and Y (1995) FLC 92-581 (“D and Y”) and Bennett and Bennett (1991) FLC 92-191 (“Bennett”), the Full Court referred to a “substantial” change in circumstances. It is clear from the reasons in those matters that the Court did not intend to impose a test that differed from that in Rice and Asplund itself. Indeed, in D and Y at 81,764, the Court posed the ultimate conclusion as to whether there had been a sufficient change of circumstances to justify the reopening of the issue of custody.
The approach of the primary judge was therefore fully in accord with well-established principles, although her Honour would not have erred if she had in fact used the word “substantial”. I consider that her Honour did not look at the nature of the asserted changes of circumstances alone. Rather, her Honour was at pains to weigh those changes against the disadvantage to the child of being involved in further litigation. In my opinion, this ground of appeal has not been made out.
Did the primary judge fail to consider the composite parts of the appellant’s change of circumstances cumulatively? (Ground 2)
As I have already observed, the appellant raised six matters which established a change of circumstances.
The primary judge found that the first matters (the appellant’s marriage and the birth of her second child) were not significant changes. As to the former, this was because it was known at the time of the orders made on 8 July 2015 that the appellant was to be married in three months’ time. Her Honour recognised that having to care for two children, as opposed to one, would give rise to some obvious issues, however, it did not amount to a significant change as contemplated by Rice and Asplund.
Her Honour said:
90.In addition, senior counsel for the [respondent] submitted that at its highest, to the extent that the [appellant] can point to a change in circumstances, it is a change which the [appellant] (and her husband) have manufactured for the purpose of the [appellant’s] application. At the time that these proceedings were issued, the [appellant] and Mr [A] expressed a desire to relocate to [regional] Victoria. There was no firm plan, nor indeed had they identified specifically where they intended to relocate.
Her Honour, then turned to the other issues and said:
98.That however, is not the end of the matter. Even if I were persuaded that the offer to Mr [A] of a transfer to [Town C] constituted a significant change, I must still consider whether it is in [X’s] best interests for the [appellant] to be permitted to re-litigate parenting arrangements. For the following reasons, I am not satisfied that it is.
99.In all of the circumstances, I am not persuaded that it is in [X’s] best interests for her to be exposed to further litigation about future parenting arrangements. [X] should be given an opportunity to have a normal childhood and experience the love and attention which her parents each have for her under the 2015 final orders.
100.Any additional complications arising from the fact that the [appellant] is now parenting two children can be accommodated in the context of the 2015 final orders. Moreover, whilst [X] now has a half-sister in the [appellant’s] home, she also has a half-brother in the [respondent’s] home. The 2015 final orders are sufficiently comprehensive to allow [X] to continue to develop and maintain her relationship with both siblings.
101.The procedural background to this matter outlined above reveals that this child has been the subject of almost constant litigation for over [nine] years of her life thus far. Moreover, it is clear that until these proceedings were issued, the 2015 final orders were working well. Indeed, the [appellant’s] own evidence supports this contention.
102.To the extent that Mr [A] has accepted a transfer to [Town C], this was a decision taken in the context of the 2015 final orders having been made and in place for some time. The evidence does not suggest that Mr [A] is required to work in [Town C] in the sense that if he did not accept the transfer, he would be unemployed. Rather, it is clear that the [appellant] and Mr [A] have made a choice to move to [Town C]. That choice was made in the context of final orders being made in 2015 after protracted litigation.
103.As aptly submitted by senior counsel for the [respondent], when two people have a child together, their life choices become constrained by the needs of the child. Where those two individuals separate, those constraints might be imposed by orders which are made in the child’s best interests. Clearly where circumstances change, the court has the discretion to alter such orders. However, that discretion is limited by the principle in Rice [and] Asplund as discussed above. Ultimately, like all parenting orders, an order to re-litigate parenting orders must only be made if to do so would be in the child’s best interests.
(Emphasis added)
In these paragraphs, the primary judge explained why all of the circumstances did not justify a further hearing on the parenting issues. There is no reason to think that when her Honour used the phrase at [99] which I have emphasised, that it was not an accurate description of what was taken into account.
This ground of appeal does not succeed.
Were the primary judge’s reasons for judgment adequate? (Ground 3)
As I have said, the issue of the adequacy of reasons was approached in a limited way. The appellant submitted:
31.In the present case, this ground is raised only as the corollary of grounds 1 and 2, insofar as the appellant asserts that:
31.1.To the extent that the [primary] judge at first instance considered whether the appellant had established a ‘prima facie case of change circumstances’ such as to warrant ‘a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing’, this is not reflected in the reasons; and
31.2.To the extent that the [primary] judge at first instance considered the component parts of the [appellant’s] asserted change of circumstances as a whole, this is not reflected in the reasons.
(Appellant’s Summary of Argument filed on 17 July 2020) (As per the original)
Grounds 1 and 2 have not succeeded. In dealing with those grounds, I have had no difficulty in following the primary judge’s path of reasoning. Therefore, the reasons are adequate (Bennett at 78,266-78,267; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]–[59]).
Costs and conclusion
In my opinion, the appeal should be dismissed.
The appeal has been wholly unsuccessful (s 117(2A)(e) of the Family Law Act 1975 (Cth) (“the Act”).
The appellant did not suggest that her financial circumstances were a consideration to be taken into account (s 117(2A)(a) of the Act).
In my opinion, the appropriate order is that the appellant should pay the respondent’s costs fixed in the sum of $19,124.55.
The injunction made on 3 July 2020 should be continued until those costs are paid in full.
Austin J
I agree with the orders proposed and the reasons given by Aldridge J.
Ainslie-Wallace J
I too agree with the orders proposed and the reasons given by Aldridge J and therefore the orders of the Court will be:
(1)The appeal against the orders of a judge of the Federal Circuit Court of Australia made on 29 April 2019 is dismissed.
(2)The appellant pay the respondent’s costs of the appeal fixed in the sum of $19,124.55.
(3)The injunction made by Strickland J on 3 July 2020 to continue until the costs order is paid in full.
I certify that the preceding forty (40) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Austin JJ) delivered on 19 August 2020.
Associate:
Date: 21 August 2020
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