Yapp & Wyndham

[2021] FamCAFC 80

FAMILY COURT OF AUSTRALIA

Yapp & Wyndham [2021] FamCAFC 80

Appeal from:

Yapp & Wyndham [2020] FCCA 2122

Appeal number(s):

SOA 68 of 2020

File number(s):

MLC 8709 of 2013

Judgment of:

STRICKLAND J

Date of judgment:

26 May 2021

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Where the primary judge determined the appellant’s application by applying the rule in Rice and Asplund (1979) FLC 90-725 as a preliminary or threshold issue – Where it was within the discretion of the primary judge whether the application of the rule was to be addressed as a threshold issue or as part of a final hearing – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks costs – Where the appellant was wholly unsuccessful in the appeal – Where the appellant opposed any order for costs citing his poor financial circumstances – Where impecuniosity is not a bar to an order for costs being made where there are circumstances otherwise that justify such an order being made – Where there are circumstances here which justify an order for costs – Costs ordered in the sum as sought by the respondent.

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 117

Cases cited:

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

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

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

Division:

Appeal Division

Number of paragraphs:

40

Date of hearing:

4 December 2020

Place:

Adelaide via Video-link

Solicitor-Advocate for the Appellant:

Ms D’Angelo

Solicitor for the Appellant:

Hartleys Lawyers

Counsel for the Respondent:

Ms Heggie

Solicitor for the Respondent:

Victoria Legal Aid

ORDERS

SOA 68 of 2020
MLC 8709 of 2013

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR YAPP

Appellant

AND:

MS WYNDHAM

Respondent

ORDER MADE BY:	STRICKLAND J
DATE OF ORDER:	26 MAY 2021

ON 4 DECEMBER 2020 THE COURT ORDERED THAT:

1.        The appeal be dismissed.

2.        The question of costs be reserved.

THE COURT ORDERS THAT:

1.The father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $3,763.94.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

INTRODUCTION

1. On 10 August 2020, Mr Yapp (“the father”) filed a Notice of Appeal from an order made by a judge of the Federal Circuit Court of Australia on 13 July 2020. The appeal was opposed by Ms Wyndham (“the mother”).

2. The appeal was heard on 4 December 2020, when an order was made dismissing it. However, because of time constraints, this Court was unable to provide ex tempore reasons, and it was indicated that the reasons would be provided subsequently. These are those reasons.

3. The order appealed from dismissed the Amended Application filed by the father on 25 June 2020. In that Amended Application the father sought that the final parenting orders made on 19 September 2016, in relation to the one child of the relationship, namely X born in 2012, be discharged, and relevantly, new parenting orders be put in place providing for the child to live with the parties on a week and week about basis after an initial period of six weeks.

4. The order sought to be discharged was a consent order and provided for the child to live with the mother, and to spend time with the father.

   PROCEDURAL BACKGROUND

5. Parenting proceedings were initiated by the father in 2013, and final orders were made in July 2014 for the child to live with the mother and spend alternate weekends with the father. A family report was obtained in those proceedings.

6. The father issued further proceedings in September 2015, which were also the subject of a family report. In those proceedings allegations were made by the father that the child was the subject of child abuse. However, those allegations were not proven, and the final orders were those made by consent on 19 September 2016.

7. Then, the father filed a further application on 17 December 2019, which was amended on 25 June 2020, and was the application which led to the order the subject of this appeal. In the meantime, the father filed yet another application on 28 April 2020, seeking orders that the child live with him and spend each alternate weekends with the mother. That application followed the father refusing to return the child to the mother, citing safety concerns for the child in relation to the mother’s partner. On 12 May 2020, the primary judge dismissed that application and ordered that the father return the child to the mother.

8. The primary judge then heard the Amended Application filed on 25 June 2020 on 9 July 2020, and delivered his reasons for judgment and made orders on 13 July 2020. His Honour determined that application by applying the rule in Rice and Asplund (1979) FLC 90-725 as a preliminary or a threshold issue.

   THE APPEAL

9. Ultimately the grounds of appeal relied upon by the father were as follows:

   2.        His Honour … denied natural justice on the following basis:

   a.Not allowing cross-examination and final hearing in this matter to test the evidence;

   b.Failing to appoint an Independent Children’s Lawyer to obtain the wishes of the Child;

   c.His Honour made Orders on a Interim level that he was not in a position to make without hearing evidence and considering the evidence;

   d.His Honour failed to consider, or failed to properly consider, or attached insignificant weight to the effect of the Child’s attachment to the Father;

   e.His Honour attached no, or inadequate weight to the Child’s attachment to the Father and the ability to develop a more meaningful relationship;

   f.His Honour denied natural justice without allowing a family report and 11F report to be conducted;

   g.His Honour failed to consider the father’s application which was reasonably practicable and did not place enough weight on same;

   h.His Honour erred in law by not ordering psychiatric assessments to be completed of the parties.

   3.His Honour … has erred in weighting the significant change in circumstances under the Rice v Asplund threshold when dismissing the application to vary the previous Final Orders from 2016.

   4.His Honour … has also erred in the weight applied to the Child’s wishes in this matter, the Child’s wishes have not been sought or heard accordingly and without being considered through any third party independent exert evidence.

   5.His Honour erred in considering the Mother’s ability in promoting a meaningful and significant relationship between the Child and the Father.

   (As per original)

10. These grounds of appeal will be addressed in turn.

    Ground 2

11. This ground asserts a denial of natural justice on a number of bases. However, that claim is misconceived, and fails to recognise that it is within the discretion of a trial judge to determine the means by which the rule in Rice and Asplund is applied, and that it was open to his Honour to determine the application before him as a threshold issue (Poisat & Poisat (2014) FLC 93-597 at [45] and [46]). Thus, his Honour was not in error by not permitting cross-examination, by not conducting a final hearing, and by making orders on an interim basis without hearing evidence. Indeed, his Honour’s orders were not interim orders.

12. As to the complaint that his Honour failed to appoint an Independent Children’s Lawyer (“ICL”), failed to order a family report or a section 11F report, and failed to order psychiatric assessments of the parties, that does not sound in a denial of natural justice, but were matters within his Honour’s discretion in applying the rule in Rice and Asplund, and it has not been demonstrated that, in the circumstances of the matter, his Honour erred in the exercise of that discretion. Indeed, as an aside, although there were applications for the appointment of an ICL, and for a section 11F report to be provided, there was no application for psychiatric assessments, and thus that is not a complaint which can be maintained.

13. Further, the father chose not to provide any transcript of the hearing before the primary judge for the purposes of the appeal, and therefore it is impossible to know what, if anything, was said about these matters before his Honour.

14. It would seem though from the submissions made on behalf of the father, that the purpose of appointing an ICL and obtaining a report, was to put the views of the child before his Honour, but his Honour said in [13] that he was not “persuaded that a section 11F report regarding the views of the child would make any material difference to the decision” that his Honour had to make. Nothing has been put to this Court which demonstrates that given the matter before his Honour, his Honour erred in reaching that conclusion, and in particular, in the absence of a transcript.

15. In relation to the complaint that his Honour failed to consider the “Child’s attachment to the Father”, and “the ability to develop a more meaningful relationship”, that highlights the failure by the father and his legal representatives to appreciate the nature of a threshold or preliminary hearing, and more particularly, the question(s) that his Honour was required to address in applying the rule in Rice and Asplund. I will say more about this shortly, but for now, the point is, that they are matters for a full hearing if the threshold hurdle is overcome. Again, it is not an issue of a denial of natural justice.

16. That leaves the complaint that his Honour failed to consider whether the father’s application was “reasonably practicable”. Again though, that is not an issue for the preliminary hearing, and would only become relevant if it was determined that there should be a full hearing reopening the parenting issues. Section 65DAA of the Family Law Act 1975 (Cth) (“the Act”) might then be engaged at that hearing.

17. There is no merit in this ground of appeal.

    Ground 3

18. This a ground which is difficult to understand, but being as generous as I can, it may be a challenge to his Honour’s finding that the alleged changes in the circumstances were insufficient to warrant reopening the case ([13]).

19. If it can be read as such, then unlike Ground 2, and as will be demonstrated shortly, unlike Grounds 4 and 5, the father and his legal representatives may have finally recognised what it is that his Honour had to address in applying the rule in Rice and Asplund. That rule requires a trial judge to determine whether, assuming the evidence of the applicant is accepted, there is a sufficient change of circumstances to justify embarking on a full hearing (SPS and PLS (2008) FLC 93-363 at [81]). In that context the ultimate issue is whether it is in the best interests of the child to become embroiled in further litigation (Carriel & Lendrum (2015) FLC 93-640 at [57]).

20. Before his Honour the father did raise certain matters in an attempt to establish that the circumstances had changed sufficiently, and his Honour recorded those matters in [5] as follows:

    …

    a)        the child was four when the 2016 orders were made and the child is now eight;

    b)when the orders were made, the father was living about three and a half hours and then subsequently two hours from the mother’s residence, whereas he is now living about 15 minutes away;

    c)the father has expressed views that he would like to spend more time with the child and that he has concerns about the child living in the mother’s house;

    d)the child has viewed inappropriate films whilst in the company of the mother and her partner, particularly, ‘B Movie’, which is rated ‘R’;

    e)the mother has failed to promote the relationship between the child and the father;

    f)the father expresses the opinion that he is aware that it is important for the child to have a relationship with both parents and that the child loves the mother and the father equally but is concerned that the mother is not encouraging this; and

    g)the father submitted it was appropriate to obtain a s.11F report for the court to ascertain the child’s wishes and to allow for his views to be ascertained.

21. Immediately, paragraph (g) can be discounted, as can paragraphs (a), (b) and (c). The fact that the child is now eight years of age, and the fact that the parties lived closer together, and the father’s view that he would like to spend more time with the child, are not circumstances which would warrant reopening the case.

22. As to any “concern” that the father has about the child living in the mother’s house, and what perhaps is also asserted in paragraph (d), his Honour referred to a report filed by the Department of Health and Human Services in which it was concluded as follows (at [12]):

    It is assessed that there is no role for Child Protection at this point of time as there is no information to suggest that [the child] is at risk of significant harm in either [the mother’s] or [the father’s] care. The information acquired at intake indicates that [the child] is not at a level of risk which warrants further Child Protection involvement.

23. That leaves paragraphs (e) and (f), and there the father expresses his concern that the mother is not encouraging or promoting the relationship between him and the child. Again though, those bald assertions are insufficient and his Honour was correct to find as he did in [11]:

    This is a case which has already been the subject of two previous applications and final orders. The third proceeding, being an application in a case, is the one that I now must decide. In my view, the factors pointed to by the father do not constitute a sufficient reason to allow him to embark on a further course of litigation regarding this child. He has already been the subject of two family reports.  The parents are apparently in high conflict and it is unlikely that the court would make orders for shared care or for the child to live principally in the father’s care. Shared care arrangements are those which generally require a reasonably high degree of co-operation between the parents and, as I have explained, such co-operation does not exist in this case.

24. There is no merit in this ground of appeal.

    Ground 4

25. His Honour was aware of what the parties deposed to in relation to the wishes of the child, and to repeat, his Honour was not persuaded that obtaining a report as to those wishes would make any “material difference” to the decision that he had to make ([13]).

26. His Honour was also, correctly in my view, alert to the fact that the parents were “apparently in high conflict”, and that it was “unlikely” that the court would make the orders sought by the father ([11]).

27. This ground also has no merit.

    Ground 5

28. This again is not an issue for the preliminary hearing, but may well be an issue for a final hearing, if the threshold hurdle is overcome. Thus, this ground of appeal is misconceived and need not be considered.

    CONCLUSION

29. Given that there is no merit in any of the grounds of appeal, the appeal must be dismissed.

30. However, before leaving this matter there are three comments that this Court wishes to make.

31. First, it is readily apparent that the father and his legal representatives have no, or limited understanding, of how the rule in Rice and Asplund is applied, and in particular, that it was within the discretion of the primary judge whether the application of the rule was to be addressed as a threshold issue, or as part of a final hearing. Further, from the written summary of argument and the oral submissions made on behalf of the father, there was no recognition of the difference between a preliminary hearing and a final hearing, and much of what was put to the court was irrelevant.

32. Secondly, there was no recognition by the father or his legal representatives that when applying the rule in Rice and Asplund, it is unnecessary to address in any detail, or even at all, the factors for determining what is in a child’s best interests contained in s 60CC of the Act (Carriel & Lendrum at [49]-[58]).

33. Thirdly, there was also no recognition by the father or his legal representatives of whether an order dismissing an application such as the father’s here, is a “parenting order” (see Poisat at [52]-[54], and Carriel & Lendrum at [59]-[61]). If it is not a parenting order then the court would not be obliged to apply the presumption in s 61DA, and to consider the matters in s 65DAA.

34. Finally, can I say that the written submissions of the father and the oral submissions by his solicitor-advocate at the hearing of the appeal, were not only of no assistance, but they contained substantial errors and were generally irrelevant in attempting to justify appealable error by the primary judge.

    COSTS

35. Given the appeal was dismissed, the mother sought an order for costs in the sum of $3,763.94.

36. The mother relied primarily on the circumstance that the father was wholly unsuccessful in the appeal, but also made submissions about the conduct of the litigation by the father, including the fact that he had failed to comply with the order for costs made in these proceedings by the primary judge on 13 July 2020. Further, and relevantly, the mother was in receipt of legal aid.

37. The father opposed any order for costs citing his poor financial circumstances.

38. The application for costs is governed by s 117 of the Act. Pursuant to s 117(1) each party is to bear their own costs, but where there are circumstances that justify it, the court has a discretion to make an order for costs (s 117(2)).

39. Here, there are such circumstances (e.g. see s 117(2A)(c), (e) and (g)), and thus it is open to this Court to make an order for costs.

40. As to the father’s financial circumstances, there is ample Full Court authority that even impecuniosity is not a bar to an order for costs being made, where there are circumstances otherwise that justify such an order being made (D & D (No 2) (2010) FLC 93-435). That is the position here, and accordingly there will be an order for costs as sought by the mother.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland.

Associate:

Dated:       26 May 2021