Walter & Walter
[2016] FamCAFC 56
•14 April 2016
FAMILY COURT OF AUSTRALIA
| WALTER & WALTER | [2016] FamCAFC 56 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Where the mother seeks to discharge recent parenting orders – Where the parties have previously engaged in lengthy litigation – Where the relationship between the parties is characterised by hostility – Whether the primary judge erred in the application of the principles in Rice & Asplund (1979) FLC 90-725 – Whether existing parenting orders ought to be reconsidered – Whether there has been a sufficient change in circumstances to justify reopening the parenting proceedings – Where one of the children suffers severe anxiety – Where the primary judge found that the child’s ongoing anxiety and school refusal does not constitute a change in circumstances sufficient to justify reopening proceedings – Where the primary judge had regard to all affidavits and other documents on the court file – Whether the primary judge denied the mother procedural fairness by not confining his consideration of the matter specifically to the affidavits filed in support of her application – Where the primary judge was entitled to find that, even had the mother established the necessary change in circumstances, it would still not be in the best interests of the children to reopen proceedings and commence protracted litigation – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 62G, 69ZN |
| Bennett and Bennett (1991) FLC 92-191 | |
| APPELLANT: | Ms Walter |
| RESPONDENT: | Mr Walter |
| FILE NUMBER: | MLC | 6449 | of | 2010 |
| APPEAL NUMBER: | SOA | 93 | of | 2014 |
| DATE DELIVERED: | 14 April 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 16 July 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 November 2014 |
| LOWER COURT MNC: | [2014] FCCA 2479 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr North S.C. and Mr Nehmey |
| SOLICITOR FOR THE APPELLANT: | Taussig Cherrie Fildes Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bartfeld Q.C. |
| SOLICITOR FOR THE RESPONDENT: | Susan Snyder |
Orders
The appeal against the order of Judge Burchardt made on 24 November 2014 is dismissed.
Within seven (7) days of the date of these orders, the father file and serve any submissions in relation to costs of the appeal. The mother file and serve any submissions in reply to the submissions of the father within seven (7) days of receipt of the father’s submissions.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walter & Walter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 93 of 2014
File Number: MLC 6449 of 2010
| Ms Walter |
Appellant
and
| Mr Walter |
Respondent
REASONS FOR JUDGMENT
MAY J
I have the considerable benefit of reading the reasons in draft of Ainslie-Wallace and Murphy JJ. I agree the appeal should be dismissed and would also make the directions for the filing of submissions in relation to costs.
AINSLIE-WALLACE J
Introduction
Ms Walter (“the mother”) appeals against an order of Judge Burchardt made on 24 November 2014 which dismissed the mother’s application for further parenting orders in relation to the three children of her relationship with Mr Walter (“the father”). The three children are X who was born in 2000, Y who was born in 2002 and Z who was born in 2004. Earlier parenting orders, which provided for the children to live with the father and spend time with the mother, were made in June 2012 and May 2013.
The mother’s application, filed on 29 April 2014, sought that all current parenting orders be discharged, “including the Orders made 6 June 2012 and
29 May 2013”, that the children live with the mother and that she have sole parental responsibility for their day to day care, welfare and development. The application sought that provision be made for the children to spend time with the father.
By a separate application filed 22 July 2014, the mother sought interim orders that a Family Report be prepared in relation to the children and that both parties be permitted to take the children on overseas holidays.
The father opposed the mother’s application and sought that it be dismissed. He contended that the children’s circumstances had not changed such that there should be further proceedings about parenting issues.
The parties agreed that the issue of whether there had been a sufficient change in circumstances to justify further litigation ought to be determined as a preliminary issue in the proceedings.
The matter came before the primary judge on 2 September 2014 and it was agreed that he would determine the preliminary issue based on written submissions from the parties.
On 24 November 2014, his Honour ordered:
1. The application of the mother filed 29 April 2014 be dismissed.
Background
It was uncontentious that there had been litigation between the parties about parenting issues for some years. Relevantly, after a hearing that occurred over seven days during 2011 and 2012, Judge Hartnett on 6 June 2012 made orders that the parties have equal shared parental responsibility for the children and that the children live with the father and spend time with the mother five nights in each fortnight and at other specified times.
There was then further litigation between the parties in 2013 regarding travel. On 29 May 2013 orders were made permitting the mother to take the children overseas for a holiday on the provision of certain information to the father.
In her application for orders in the application before the primary judge, the mother sought that both the orders made in June 2012 and May 2013 be set aside.
The mother asserted in her affidavit that she sought a reconsideration of the parenting orders because of her concern for the welfare of the children, particularly Y.
It is uncontentious that for some time before the making of the orders in 2012, Y had experienced anxiety, particularly about attending school. The mother said that although Y had been reluctant to attend school for some time, she had not categorically refused to attend until May 2013, when she refused to attend school camp or to attend school in that week. Y subsequently received counselling at school and had several sessions with a private counsellor to address the issue.
Nonetheless, the mother said that throughout 2013 and into 2014, when she started in high school, Y refused to attend school. In April 2014, Y commenced counselling once or twice per week with a counselling service. However, the mother said that despite this Y still did not regularly attend school between April and June 2014. Although she said that Y’s school attendance records since June showed a “conservative improvement”, she said that Y did not complete any homework nor did she sit any tests.
It seems uncontentious that the child refuses to attend school whether in her mother or father’s care. She has been identified as having a particular anxiety about testing and exams and thus will not attend school on any day on which there is a test or exam scheduled.
In addition to Y’s school attendance, she is said to have developed certain phobias and anxieties, including a fear of flying and a fear of being alone at night.
In essence, the mother contended that the increased severity of Y’s anxiety constituted a change in circumstances that warranted the reconsideration of the existing parenting orders.
The father agreed that Y had a history of refusing to go to school, referring to one occasion in 2010 and numerous occasions in 2011 when she refused to get out of the car to enter the school. He agreed that her school refusal increased in 2012, 2013 and during the first two terms of 2014. However, he said that since July 2014 she had “attended school on most days” and “often stayed all day” (Father’s affidavit filed 14 August 2014). He also agreed that since having counselling at a counselling service, Y had improved and that he believed she had “turned the corner” in this regard.
Thus it is tolerably clear that the escalation of the child’s refusal to attend school in 2012 and 2013 was conceded by the father. Both parents blamed the other for this escalation. In any event, the undisputed evidence before
his Honour was that before the 2012 orders were made, the child was attending school, albeit reluctantly, but after the making of the orders she refused to attend for significant periods of time.
In addition to her concerns about Y, the mother also raised concerns about the emotional welfare of the other children, for example she contended that they were “enmeshed” emotionally with the father.
The Reasons of the Primary Judge
After referring to the history of the litigation between the parties, the judge observed that:
17. …[I]f litigation continues, it will be ferociously pursued by both parties and, at least on the mother’s view of the matter, is likely to involve the possibility of multiple expert reports and a very protracted set of proceedings. …
His Honour set out the materials relied upon by the parties in support of their respective applications commencing at [18] and following. He referred specifically to the affidavits filed by the mother and the mother’s solicitor in support of the application before him and the father’s affidavit filed in response.
Under the heading; “Has there been a material change in circumstances? The materials filed in the original proceeding”, his Honour said:
54. I have read (perhaps glossing over some subpoenas and other procedural papers) the entirety of the materials filed in this proceeding, save for the transcript. Doubtless I may have overlooked some matters. …
He continued and summarised the affidavits filed in the earlier proceedings. He then said:
91. While I would have no confidence, given the enormous scale of the parties’ materials, that I have canvassed each and every matter relevant to these issues, the above, in my view, gives a reasonable overview of the sort of materials the parties have put before the Court. …
He then turned to consider the reasons of Judge Hartnett for the orders made in June 2012. His Honour said:
100. The primary thrust of the mother’s case is that [Y’s] school refusal represents a new and vital change in circumstances, such as to justify a re-examination of the children’s best interests. In my view, the facts asserted by the mother, when examined against the materials in this file as a whole, do not establish that proposition. I have set out, at some considerable length (although as I have indicated more than once, I do not purport to say exhaustively) the materials that touch upon [Y’s] insecurities and school refusal raised during the currency of this regrettably lengthy proceeding. In my view, it is obvious that [Y] has been anxious for a long time. It is equally obvious that that has, from time to time, manifested itself in school refusal and associated behaviours.
Although the judge accepted that Y’s school refusal had become more extreme in 2014 than it was previously, his Honour said that this was “scarcely surprising” given that she had “transitioned” to a new secondary school. He said that the Y’s anxiety had not changed and noted that the mother’s evidence was that the child’s anxiety was exacerbated by different things from time to time, for example school tests ([101]).
The judge said that it had been the mother’s case from the outset that the father was “seeking to alienate the children from her” ([102]) and that the children were “enmeshed” with the father. In both respects, the judge found nothing had changed in relation to these concerns ([103]).
He concluded that even if he was incorrect in finding that there had not been a material change in the circumstances relating to the children, he would nonetheless “…still not be minded to embark upon the sort of process that the mother seeks” ([107]).
He said:
108. … The materials as a whole show an entrenched and embittered family dispute. One only has to read the affidavits of the parents to see the strain and anxiety that proceedings impose upon the parents. It is equally clear in my view, taking the materials as a whole, that the proceedings have a very damaging effect upon the children. So much is apparent from what each of them has said from time to time. It is also self-evident as a matter of ordinary human experience.
109. [Y], whose circumstances are at the heart of the current application, is, on any view, an anxious child struggling to cope. Further litigation between her parents involving, as the mother seeks that it does, examination by at least some, and possibly numerous, expert witnesses, is only going to make her more anxious. It cannot be in the best interests of [Y] or any of the children to have the anxiety of further litigation visited upon them. This is over and above those matters to do with the finality of litigation and the undesirability of the allocation of Court resources on an unending basis to litigants who are unprepared to settle, to which I have already referred.
Finally, he concluded:
111. … The fact is, however, that the materials taken as a whole show that even if [the mother] is correct in her assumptions, it is preferable that this litigation not recommence. For these reasons, the application will be dismissed.
The Appeal
By an Amended Notice of Appeal, the mother asserts eight grounds of challenge to his Honour’s orders dismissing her application. However, the summary of argument relied on by counsel for the mother refined the grounds by grouping them under three headings. Counsel for the father responded to the refined grounds and they will be considered in the same way. In the process of refining the grounds, some were not pressed.
The three broad grounds of challenge to his Honour’s order are:
A. Denial of procedural fairness/natural justice (Grounds 1 and 3);
B. Error in the application of the Rice & Asplund (1979) FLC 90-725 principles (Ground 4); and
C.Error in the judicial process (Grounds 7 and 8).
A. Procedural fairness
This challenge contends that the judge, in coming to his decision that the mother’s application ought to be dismissed, took into account irrelevant issues and matters derived from sources other than the evidence properly before the court. In so doing, it was argued that his Honour denied the mother natural justice and procedural fairness. Additionally it was said that the process by which the judge reached the decision constituted a denial of natural justice because he reviewed “material” in the wider court file which had not been addressed by either party in the written submissions and that, further,
his Honour did not indicate to the parties his intention to consider that wider material.
It was argued that the relevant material before his Honour comprised the mother’s Initiating Application and Application in a Case, the father’s response to the Initiating Application and to the Application in a Case and the affidavits filed in support of those applications and responses. The thrust of this part of the challenge is that his Honour did not confine his consideration of the issue to be determined to the applications and affidavits filed in the current proceedings. Rather, he took into account all of the affidavits and other documents on the court file, including the affidavits filed in the earlier proceedings determined by the orders of Judge Hartnett of June 2012.
It is important to note here as Mr North conceded (Appeal Transcript, 16 July 2015, p 5 l16, 40) that neither party sought to direct his Honour’s attention to the documents said to be relevant to his determination of the issue.
Given the issues raised in this challenge, it is helpful to set out the relevant parts of the exchanges between the judge and the legal representatives for the parties on 2 September 2014.
After a discussion about when the issue could be heard and how long it would take, his Honour said:
HIS HONOUR: I’m quite sure I can do it this week. I just wanted an idea of the scope and scale of it. So there’s no more affidavits to be filed. It’s just a matter of reviewing the materials and making a decision about the Rice & Asplund point…
(Transcript 2 September 2014, p 3 l 21)
After some further discussion about obtaining mutually convenient dates for hearing, his Honour said:
HIS HONOUR: Well, I don’t think it will take two hours when I’ve read the file. I mean, ultimately, these sort of – there’s only so much counsel can really say about these things. The materials speak for themselves, and it’s a matter of whether I agree there has been a material change in circumstances or not at that level of analysis you make when you do a Rice & Asplund point at the beginning. …
(Transcript 2 September 2014, p 4 l 1)
The mother contended on appeal that although his Honour referred to the “material in the file”, neither party, during that hearing or in written submissions, made reference to the evidence filed in relation to the earlier hearing. It was further argued that the written submissions made direct reference to the evidence of events succeeding the earlier orders.
It was thus said that, as a result of not confining his consideration to the material filed in support of the application, his Honour erred in “selectively canvass[ing] the historical affidavit material” where his Honour himself said that he may have overlooked some matters and where the parties were unaware that he intended to do so and had no opportunity to address him on the historical evidence.
During the course of argument on the appeal, counsel for the mother said that his Honour’s reasons do not make clear what exactly he had read from “the file” and noted that his Honour said himself (at [91]) that he was not confident that he had covered every relevant matter in his reading of the affidavits on the file.
While counsel for the father conceded that the course adopted by the primary judge in reading not only the reasons of Judge Hartnett for making the earlier orders but also the affidavit and other material on which the parties relied before her Honour could have led him into error, such as making findings contrary to those made by Judge Hartnett, he did not. The primary judge neither cavilled with her findings nor did he express a view different from hers. Thus it was argued that his Honour made no error in adopting the course he did.
In this case, the course his Honour took was one to which counsel for both parties either consented or, by their silence, endorsed. While his Honour, when he referred to reading “the file”, might have meant that he would read only the decision of Judge Hartnett and the recently filed affidavits, that was not clear and nor was clarification sought.
The course that his Honour took in reading all of the affidavits was, it must be said, unorthodox, and could have led him into error. In this case however it must be accepted that nothing in his extensive reasons leads to the conclusion that he was so led.
Even if the parties could not be held to know or reasonably assume from
his Honour’s comments that he proposed to read more widely than the material filed on the application, any denial of procedural fairness has not resulted in error.
This challenge is not made out.
B. Error in the application of the Rice & Asplund principles
The second challenge asserts that his Honour misapplied the relevant legal principles.
In Rice & Asplund (1979) FLC 90-725 Evatt CJ said at [78,905]:
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…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 …
In discussing the application of those principles, the Full Court said in Marsden & Winch (2009) 42 Fam LR 1:
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.
In Carriel & Lendrum (2015) FLC 93-640, the Full Court said at 80,173:
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.
Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that Y had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour.
His Honour’s findings clearly accept the parties’ position that Y’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.
C. Failure of the judicial process
Finally, the mother argued that the judicial process failed because his Honour declined to exercise jurisdiction and hear an application properly before the court.
This challenge arises from his Honour’s finding at [107] where he said:
107. Even accepting, as I must […] that the mother’s version of facts is made out and that of the father is not, and even accepting that I might be wrong as to whether there has been a material change of circumstances in the sense that I have mischaracterised the evidence, I would still not be minded to embark upon the sort of process that the mother seeks.
It was argued that in this passage his Honour accepted the mother’s evidence and found that it demonstrated a material change in circumstances, and therefore that his Honour was wrong to dismiss the mother’s application having so found.
In [107] his Honour did not find that the mother’s assertions of a change were made out. Rather, properly characterised, his Honour’s comments are in fact positing a hypothetical situation: if the mother’s evidence is accepted, and if it was found to reflect the relevant change in circumstance, to allow the application to proceed would not, in that event, be in the children’s best interests.
His Honour dismissed the mother’s application because he said that if it was permitted to proceed, the litigation would be protracted and involve some, possibly numerous, expert witnesses. Essentially, his Honour considered that the spectre of protracted litigation would be inimical to the best interests of the children to the extent that he would thus dismiss the mother’s application.
It is beyond doubt that a preliminary finding made in application of the Rice & Asplund principles requires a consideration of what is in the best interests of the child.
It was contended for the mother that, having found a material change in circumstances, a decision to dismiss the application amounted to a court being seized of jurisdiction but refusing to exercise it. In this case it was argued that his Honour considered only two possibilities: to dismiss the application or to allow the application to go forward without restriction. It was said that in so confining his consideration his Honour failed to consider other options, such as obtaining a family report directed either to the impact of further litigation on the children or more widely as to Y’s anxiety, or of confining the litigation to discrete issues.
In any event, the thrust of the argument was that, having found a material change in circumstances, his Honour erred in then dismissing the application without sufficient evidentiary basis for finding that the interests of the children would be adversely affected by further litigation.
The respondent argued that the mother’s evidence that the children’s anxiety seemed to have increased since the application was served on the father was sufficient to enable his Honour to decide to dismiss the application.
While that evidence would lend force to his Honour’s assumption that further litigation would be stressful for the children, it falls short of providing a solid basis for declining to exercise jurisdiction properly engaged.
In my view this challenge is not made out.
Costs
Submissions were sought from the parties on the question of the costs of the appeal at the conclusion of the appeal hearing. For the father it was contended that if the appeal failed he would wish to make submissions on the question of costs of the appeal. A direction will be made for the filing of submissions as to costs.
MURPHY J
I have had the advantage of reading in draft form, the reasons for judgment of Ainslie-Wallace J. I agree that the appeal should be dismissed.
Procedural Fairness
The essence of the appellant mother’s challenge and the circumstances in which the application before his Honour proceeded has been set out earlier by her Honour.
The mother was represented before Judge Burchardt by experienced senior counsel; the father by experienced junior counsel. His Honour made four things clear to the parties through their respective counsel.
First, his Honour said that he had read the reasons for judgment of Judge Hartnett. Those reasons informed the substantive parenting orders made on 6 June 2012 sought to be varied by the mother’s application. They emanated from a seven day trial before her Honour.
Secondly, his Honour indicated that he intended to “read the file”. Thirdly, and allied to that, his Honour made it plain that “the Rice & Asplund point” was being examined “at the beginning”. It is not controversial that in so saying, his Honour was referring to undertaking the task “as a preliminary matter” in the sense referred to in earlier authorities.[1]
[1]See, in particular, SPS and PLS (2008) FLC 93-363, per Warnick J (hereafter SPS); Marsden & Winch (2009) 42 FamLR1.
Fourthly, his Honour took up the suggestion of senior counsel for the mother to undertake the hearing “on written submissions”.[2] In doing so, his Honour made it clear that each party would be afforded the opportunity to make oral submissions. His Honour said “… from what you say, I anticipate that won’t be necessary. I will just hand down judgment”, to which senior counsel for the mother responded “I don’t think so. I think your Honour will be able, comfortably, to determine the matter on the papers…”.[3]
[2] Transcript of proceedings, 2 September 2014, p 6.
[3] Ibid, p 8.
His Honour exposed all aspects of his intended process to the parties through their respective experienced counsel and sought submissions from them in respect of that process. That process had the following characteristics:
·Senior counsel for the mother and counsel for the father each agreed that the matter could be determined “on the papers” with written submissions. This is in fact what transpired;
·His Honour made it perfectly plain that he intended to have regard to the file in its entirety. Neither party raised any issue or objection in respect of that course of action. Subsequent to the exchange in court between his Honour and counsel in which that was made clear, neither party raised any issue about his Honour so doing in the written submissions submitted by each;
·No submission or suggestion was made to his Honour, in either oral or written submissions, that his Honour should restrict his reading to any portion or portions of that file. Senior counsel for the mother acknowledged expressly that it was “a very large file”. Specifically, no submissions were made to his Honour during the discussion about the process as to what specific affidavit material was relied upon by either party. Neither was the issue raised in the subsequent written submissions made by the parties;
·It was made clear to each party by his Honour that either could make further oral submissions consequent upon the written submissions of the other. Neither party sought that opportunity; and
·Nothing was said orally or in writing by either party specifically in respect of his Honour reading the reasons for judgment of Judge Hartnett, or any arguments presented before her Honour. Indeed, then senior counsel for the mother can be seen to have agreed with his Honour doing so; when his Honour indicated that he had already read the reasons for judgment, then senior counsel for the mother replied “excellent”.[4]
[4] Transcript of proceedings, 2 September 2014, p 2.
Senior counsel representing the mother before us, Mr North, relies upon the decision of this Court in Brown and Pedersen[5] for the proposition that “[t]he trial Judge had wrongly taken into account material which was not properly before him…”. In that case, the primary judge read material on the file without reference to, much less the agreement of, the parties. In my view, it is entirely distinguishable from the present circumstances.
[5] (1992) FLC 92-271, at 79,002.
Mr North also relies upon the decision of this Court in Guthrie and Guthrie,[6] citing the majority (Kay and Purvis JJ) to the effect that “… where a judge intends to step outside the boundaries of the dispute as chosen by the parties, the parties need to be given the chance to make submissions about those matters”. That case concerned the Court making orders for access (as time with a parent was then called) beyond the proposals formed by the parties. Important to the decision by this Court in that case was the proposition that “procedural fairness requires that persons who are entitled to be heard should be given prior notice, that is, sufficient information to be able to be heard in a meaningful sense and not be taken by surprise”.[7]
[6] (1995) FLC 92-647, 82,544.
[7] Guthrie and Guthrie (above), at 82,550, citing The Laws of Australia.
Again in my view, the facts of that case are plainly distinguishable from the instant case. Here, his Honour’s process was designed to meet, and in my view did in fact meet, that very mischief. The parties here were given prior notice of what his Honour intended to do; the means by which his Honour intended to do it and they were given every opportunity to be heard in respect of all aspects of that process. The mother cannot reasonably assert that she was taken by surprise by any aspect of what his Honour did.
In my view, no procedural unfairness is established.
Rice & Asplund – Material Change In Circumstances?
As Ainslie-Wallace J points out, the second of the three bases upon which the appeal was argued by senior counsel for the mother depends upon the assertion that his Honour’s finding that there was “no material change of circumstances” was not open to his Honour on the evidence before him.
Mr North SC frankly acknowledged in oral argument before us that the force of these contentions is very significantly diminished by his Honour’s ultimate findings. His Honour determined the application on the basis that, even if:
107.… [T]he mother’s version of facts is made out and that of the father is not, and even accepting that I might be wrong as to whether there has been a material change of circumstances in the sense that I have mischaracterised the evidence, I would still not be minded to embark upon the sort of process that the mother seeks.
In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[8]
[8] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.
In my view his Honour made no error as asserted on behalf of the mother.
Rice & Asplund - Errors in the “Judicial Process”?
The litigation background between these parties pertaining to their children and the nature of the parenting application brought by the mother is each important to the application of the rule and Mr North’s argument that his Honour erred in the application of the “judicial process” required by it.
The Litigation Background
Proceedings involving these three children commenced when they were aged 10 and a half, 8 and a half and 6. What his Honour described as “protracted proceedings”,[9] continued over a two-year period until the seven-day trial before Judge Hartnett concluding with her Honour’s orders made in mid-2012. Those proceedings involved the children being interviewed for the preparation of a Family Report and involved the participation of an Independent Children's Lawyer.
[9] Reasons, [4].
Judge Hartnett’s orders saw the children living nine nights per fortnight with their father and five nights per fortnight with their mother. Those orders were made contrary to the recommendations of the then Family Report writer and contrary to the submissions of the Independent Children's Lawyer at the conclusion of the trial.
The mother appealed Judge Hartnett’s orders and made application for a stay. She subsequently discontinued each.
In 2013 a “further tranche of litigation”, as his Honour described it, took place between the parents concerning the children travelling overseas. Orders were made by Judge Hartnett on 29 May 2013.
Some 11 months later, on 29 April 2014, the mother filed the instant application. That application sought to set aside both those earlier orders. The father applied for the matter to be transferred to the Federal Circuit Court of Australia. That application was opposed. A Registrar made orders on 13 June 2014 transferring the matter to the Federal Circuit Court.
The mother reviewed those orders. That review was opposed by the father. On 15 July 2014 Cronin J made orders transferring the matter from the Family Court.
Subsequent to the transfer of the proceedings from the Family Court as a result of Cronin J’s order, the mother filed an Application in a Case on 22 July 2014, seeking an order for the preparation of a Family Report pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”). Her application was amended on 18 August 2014 so as to seek, in addition, an order in respect of overseas travel for the children.
His Honour commented:
17. I have set out this somewhat extensive recitation of the more recent history of this matter because it is important to understand that even at this early stage, it is clear that if litigation continues, it will be ferociously pursued by both parties and, at least on the mother’s view of the matter, it is likely to involve the possibility of multiple expert reports and a very protracted set of proceedings. This is the fourth curial determination of an aspect of the dispute between the parties even since the Initiating Application was lodged in the Family Court earlier this year and the Affidavit material is already not insignificant in scope.
The Nature of the Mother’s Application
Warnick J said in SPS that “[w]hat the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing”.[10] Importantly, his Honour went on to say that “… [a]ccordingly, 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”.[11]
[10]SPS (above), at [48], approved in Miller & Harrington (2008) FLC 93-383; Marsden v Winch (2009) 42 Fam LR 1.
[11] SPS (above), at [83].
In that respect, the mother’s application in this case sought to:
a)Discharge orders for co-parenting arrangements that had been in place for approximately 2 and a half years;
b)Alter an existing arrangement that saw all three children living with their father for nine nights a fortnight, to one whereby all three would live with him four nights per fortnight (from Friday evening until Monday in one week, and overnight Wednesday in the following week) together with school holiday and special occasion time;
c)Involve the children in the preparation of a Family Report. It should be noted (as did his Honour at [12]) that, in his review of the Registrar’s transfer order, Cronin J said that the mother “… also submitted that [the proceedings] will take time because of the potential need for multiple expert reports”;
d)Vary arrangements in respect of all three children. In terms of material changes said to have occurred since the orders, the mother’s evidence overwhelmingly focussed upon Y’s school refusal and anxiety, as, indeed, did her counsel’s submissions before us.
The Appellant Mother’s Arguments
Mr North SC contends:
His Honour (at [107]-[111]) without reference to authority, asserts a power to summarily dismiss such an application even where the evidence demonstrates a material change since the previous order, if he forms the view that overall it is not in the children’s best interests that the litigation continue.[12]
[12] Appellant Mother’s Written Supplementary Outline of Argument, [20].
His Honour found at the paragraphs of the reasons referred to by Mr North:
·“The materials as a whole show an entrenched and embittered family dispute” and that “… the proceedings have a very damaging effect upon the children.”
·“[Y], whose circumstances are at the heart of the current application, is, on any view, an anxious child struggling to cope. Further litigation between her parents involving, as the mother seeks that it does, examination by at least some, and possibly numerous, expert witnesses, is only going to make her more anxious.”
·“It cannot be in the best interests of [Y] or any of the children to have the anxiety of further litigation visited upon them.”
His Honour concluded:
111. The matters the mother has raised are concerning. As stated more than once, I have to assume for these purposes that, despite some inherent probabilities (sic) in her account (and I note most particularly that she is clearly wrong in her assertion that there was no school refusal before 2013), it is possible she might make out most of what she asserts. Even if this is so, however, the mother’s unrelenting desire to litigate springs like a goliath from the pages of her materials. Much of what she has to say goes back to before Judge Hartnett’s decision. She clearly remains aggrieved by it and wishes, as expressly acknowledged in her application, to reverse it. The fact is, however, that the materials taken as a whole show that even if she is correct in her assumptions, it is preferable that this litigation not recommence. For these reasons, the application will be dismissed.
Mr North’s argument proceeds:
Such a determination is erroneous unless it is arrived at after a process that is a judicial process. A court seized of jurisdiction is bound to exercise it [and in so doing]…to act judicially in accordance with a judicial process.
…
If the circumstances have materially altered, the court is not being invited to revisit an earlier determination and there is nothing akin to an abuse of process that would enliven a power to decline to hear the application. Rather a summary dismissal of such an application by reason of an apprehension that the process of determining it will not be in the children’s best interests amounts to a refusal by a court to perform the judicial function…unless that apprehension is one founded upon evidence and arrived at after affording an opportunity to present a case.[13]
[13]Appellant mother’s written supplementary outline of argument, [21]-[22]. (Citations omitted – the submission refer to Houghton v Arms (2006) 225 CLR 553, at 564; Re Nolan; Exparte Young (1991) 172 CLR 460, at 496; and Kuczborski v Queensland (2014) 314 ALR 528, at [226].)
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.[14] Central to Mr North’s arguments it can, I think, be accepted that the rule might also be applied at any point between the two – for example, as Mr North would contend, after receipt of a Family Report.
[14]Rice & Asplund (1979) FLC 90-725; SPS (above); Miller & Harrington (above); Marsden v Winch (above).
In SPS, Warnick J said:
… [I]n my view, when the threshold question described in Rice & 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 upon a hearing. 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.[15]
[15] SPS (above), at [81].
And, in so deciding:
… the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before the court. The nature of the hearing that follows if the Rice & Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.[16]
[16] SPS (above), at [69], (emphasis added).
Yet, where the rule is applied at a preliminary stage, as it was in this case, the court’s jurisdiction and power is invoked in respect of two separate questions, albeit that, as Warnick J points out, the best interests of the relevant children runs as a common thread through both and they can be “intertwined”. As authority demands the first question is, are “the interests of the child[ren], in not being the subject of further litigation … more powerfully in the child[ren’s] welfare than to allow the application to continue”. The second question, namely what new parenting orders are in the children’s best interests, falls to be answered only if the first question is answered in the negative.
Thus, although the children’s best interests is fundamental to each, in respect of the former question, the circumstances of a particular case might dictate that:
…[I]t is neither necessary or appropriate…to give detailed attention or consideration…to each of the various objects and considerations specified in [Part VII of the Act] of the kind which would necessarily occur if it was decided that the best interests of the child[ren] required relitigation of those issues. …[17]
[17] CDW v LVE (above), at [92].
Equally, of course, the circumstances of a particular case might indicate to a judge that the initial question may, as Warnick said, “… not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before the court”.
There is, of course, an immediate tension. Collier J in King and Finneran[18] referred to it as the risk of “defeat[ing] the entire purpose of the ‘rule’ in Rice & Asplund”. In SPS, Warnick J expressed the same tension in saying that “… to proceed in the circumstances under discussion to a ‘full hearing in the custody dispute’ may cause the threshold question to fade completely away”.[19]
[18]King and Finneran (2001) FLC 93-079 at [41] as referred to and approved by this Court in DL & W (2012) FLC 93-496 at [77].
[19] SPS (above), at [70].
The tension is resolved by the factual circumstances of the particular case and the court’s exercise of two separate but related discretions. The first is whether to address the rule as a preliminary matter.[20] The second discretion involves deciding the necessary ambit of the evidence and proceedings necessary to decide the preliminary issue.
[20]Bennett and Bennett (1991) FLC 92-191, at 78,262, quoted with approval in D and Y (1995) FLC 92-581 specifically posits the question as discretionary.
The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.[21]
[21]See for example, Simmons and Anor & Kingsley (2014) FLC 93-581 and the numerous authorities cited in that decision.
However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
Conclusion
It follows from what I have said that I consider there is no merit in any of the grounds of appeal.
For all of those reasons I would dismiss the appeal.
Costs
I agree with the directions suggested by Ainslie-Wallace J for the filing of written submissions as to the costs of the appeal.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Murphy JJ) delivered on 14 April 2016.
Associate:
Date: 14 April 2016
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