Trewitt & Brock

Case [2021] FedCFamC1A 9

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Trewitt & Brock [2021] FedCFamC1A 9

Appeal from: Trewitt & Brock [2021] FCCA 1255
Appeal number(s): EAA 52 of 2021
File number(s): NCC 770 of 2011
Judgment of: ALDRIDGE J
Date of judgment: 15 September 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant sought to vary final parenting orders – Change in circumstances – Whether the primary judge incorrectly applied Rice and Asplund (1979) FLC 90-725 – Whether the primary judge failed to have regard to considerations in s 60CC of the Family Law Act 1975 (Cth) – Sufficient weight – Order dismissing an application is not a parenting order – Proper weight afforded to evidence of change in circumstances – Test was not misapplied – No error demonstrated – Appeal dismissed – Appellant to pay respondent’s costs in a fixed sum.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B, 94AAA(3)
Cases cited:

Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Langmeil & Grange [2013] FamCAFC 31

Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152

Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16

Number of paragraphs: 64
Date of hearing: 19 August 2021
Place: Sydney (via video link)
Counsel for the Appellant: Mr Bithrey
Solicitor for the Appellant: Burke Mead Lawyers
Counsel for the Appellant: Mr Boyd
Solicitor for the Appellant: Foat Roberts Lawyers

ORDERS

EAA 52 of 2021
NCC 770 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR TREWITT

Appellant
AND:

MS BROCK

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

15 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs fixed in the sum of $4,356.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trewitt & Brock has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

INTRODUCTION

  1. Mr Trewitt (“the father”) and Ms Brock (“the mother”), have one child (“the child”) who was born in 2009. She has autism spectrum disorder. On 5 May 2021, a judge of the Federal…

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Trewitt & Brock [2021] FedCFamC1A 9
Case
[2021] FedCFamC1A 9
Decision Date

CaseChat Overview and Summary

In Trewitt & Brock, the court addressed an appeal concerning parenting arrangements for a child born from the marriage of the parties, who separated in 2010. The father had initially sought to change the parenting orders in 2019, but later requested that the child live with the mother and he provide financial support. The mother subsequently sought to vary the orders to provide for supervised access by the father. The primary judge made orders providing for the child to live with the mother, with supervised access for the father. The father appealed, arguing the primary judge did not properly apply the relevant legal principles. The appeal was dismissed, with the court concluding that the primary judge correctly applied the statutory considerations and the welfare of the child remained paramount. The court emphasised that further litigation is generally not in a child's best interests unless there has been a significant change in circumstances since the original parenting order was made. The appeal was unsuccessful, and the father was ordered to pay the mother's costs.

Orders

Orders of the court

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Background

Background to the litigation

This appeal is being heard by a single judge pursuant to a direction given by the Chief Justice under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) on 16 July 2021.BACKGROUND In order to understand the appeal it is necessary to set out some relevant facts. The parties commenced a relationship in 1999 and married in 2004. They separated in December 2010, just over a year after the child was born. The father commenced parenting proceedings in March 2011. Ultimately, on 19 May 2014, orders were made by consent which provided for the child to live with the mother and spend time with the father. From the commencement of the school term in 2015 the child was to spend Friday to Monday and Wednesday to Thursday on alternate weeks with the father, with block time during the school holidays. The orders were complied with but, according to the primary judge, significant underlying issues remained unresolved (at [17]). On 21 March 2019, the mother attended at the father’s home to collect the child in accordance with the orders, but the father refused to allow the child to return to the mother. The police were called but they were not able to persuade the father to return the child. The mother filed an application for a recovery order on 26 March 2019 which came before the Court on 3 April 2019. By this time the father had filed an application seeking orders that the child live with him and spend five days a fortnight with the mother. The father was required to return the child and an order was made requiring the father’s time with the child be supervised. In June 2019, the father attended C Hospital and later his general practitioner and clinical psychologist. He was diagnosed with chronic stress and post-traumatic stress disorder. The father filed an Amended Application for Final Orders on 23 July 2019 which sought the following orders:(1)The mother have sole parental responsibility for the child;(2)The child live with and “spend 100% time” with the mother; and(3)The father to provide, where possible, financial support for the child’s education and autism support. In the words of the primary judge, the father decided to step out of the child’s life. In his affidavit filed on 23 July 2019, the father explained why he was seeking these orders as follows:14.The number and continuing allegations of abuse throughout [the child’s] life has caused considerable stress for myself……19.I believe there is little value in embroiling [the child] in court action for the majority of her childhood, especially considering [the child’s] autism and the trauma identified by her psychologist. Orders along the lines of those proposed by the father were made on 26 July 2019 save that an order was also made providing for the father to spend supervised time with the child as agreed between parties. The father sent the child a letter explaining that he would not be seeing her for the foreseeable future. Some eight months later, in March 2020, the father wrote to the mother asking if he could spend regular time with the child. The mother agreed provided that the time was supervised by B Contact Centre, a contact supervision agency. Supervised visits for two hours once a month commenced in October 2020.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The primary judge did not misapply the relevant test.CONCLUSION AND COSTS No error has been established. It follows that the appeal will be dismissed. The appeal has been wholly unsuccessful. There will be an order that the father pay the mother’s costs fixed in the sum of $4,356.

Ratio Decidendi

Legal Principle Established

A differently constituted Full Court returned to this question in Carriel & Lendrum (2015) FLC 93-640. After referring to [52] of Poisat, the Full Court continued:54.We consider that that statement fits neatly with what Warnick J also said in SPS & PLS set out above at [30], and with what Nygh J, with whom Barblett and Fogarty JJ agreed, said in the Full Court decision of Newling & Newling; Mole (Applicant) (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 action 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…55.This approach is also consistent with the recent pronouncement by the Full Court in SCVG & KLD (2014) FLC 93-582 to the effect that the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.56.This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.57.In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.58.Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):“… Though sometimes unstated, the underlying conclusion will or ought to 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.”59.This approach, when the principle in Rice & Asplund is in play, can also perhaps be seen as a product of the related question of whether an order dismissing an application on the basis of the principle in Rice & Asplund is a parenting order or not. If it is a parenting order then the Act requires a consideration of all of the factors that bear upon the best interests of the child. This has been touched on in several cases. For example in SPS & PLS Warnick J said this:77.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 orderIn 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.78.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 [quoted earlier in these reasons]…(Emphasis in original)60.This issue was taken up by the Full Court in Poisat where their Honours said this:53.The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the relevant child’s best interests.54.Her Honour did so. However, we have considerable doubts as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made.61.For our part, we agree with the comments of Warnick J in SPS & PLS and the Full Court in Poisat, and we seriously doubt whether an order dismissing an application such as the mother’s here is a parenting order. We are not able to come to a concluded view though because we have not heard any argument directed to this issue.