Morton & Berry [2014] FamCAFC 208; (18 September 2014)

Last Updated: 10 February 2017

FAMILY COURT OF AUSTRALIA

MORTON & BERRY

[2014] FamCAFC 208

FAMILY LAW – APPEAL – CHILDREN – WITH WHOM A CHILD LIVES – Where parenting orders were made by consent – Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 – Where a further application was brought seeking parenting orders – Where the application for parenting orders was dismissed –Whether there has been a change in circumstances. FAMILY LAW – APPEAL – CHILDREN – BEST INTERESTS – WITH WHOM A CHILD LIVES– Whether the primary judge took into account irrelevant matters – Whether the primary judge gave proper consideration to the child’s views – Where the primary judge took into account irrelevant matters – Where the primary judge failed to take into account the best interests of the child. FAMILY LAW – APPEAL – EVIDENCE – Whether a child has expressed a strong view – Whether a family report should be ordered – Whether a Child Inclusive Conference should be ordered – Whether the father’s evidence was taken at its highest – Where the primary judge refused to order a family report – Whether the child’s view had changed with age and maturity – SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 – Where the child had not expressed a view in earlier proceedings which resulted in consent orders – Where the primary judge erred by not ordering a family report to canvass the child’s view.

Family Law Act 1975 (Cth)

Langmeil & Grange [2013] FamCAFC 31 Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 Newling and Newling; Mole (Applicant) [1987] FamCA 21; (1987) FLC 91-856 Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 Poisat & Poisat [2014] FamCAFC 128 Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363

APPELLANT:

Mr Morton

RESPONDENT:

Ms Berry

FILE NUMBER:

PAC 1610 of 2010

APPEAL NUMBER:

EA 60 of 2014

DATE DELIVERED:

18 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace & Watts JJ

HEARING DATE:

18 September 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 April 2014

LOWER COURT MNC:

[2014] FCCA 727

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Andrew Givney

SOLICITOR FOR THE APPELLANT:

Tilley Family Law & Mediation

COUNSEL FOR THE RESPONDENT:

John Weaver

SOLICITOR FOR THE RESPONDENT:

Mahony Family Lawyers

ORDERS

(1) The appeal be allowed.
(2) The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act in respect of the costs incurred in relation to the appeal.
(3) The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act in respect of the costs incurred in relation to the appeal.
(4) The appellant’s amended initiating application filed 3 April 2014 be remitted for rehearing by a judge other than Judge Donald.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morton & Berry 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 SYDNEY

Appeal Number: EA 60 of 2014
File Number: PAC 1610 of 2010

Ms Morton

Appellant

and

Ms Berry

Respondent

EX TEMPORE REASONS FOR JUDGMENT

JUSTICE AINSLIE-WALLACE

1. Mr Morton, to whom, for convenience but meaning no disrespect, I will refer as the father, appeals against an order of Judge Donald made on
   11 April 2014 dismissing the father’s application for parenting orders.
   Ms Berry, again to whom I shall refer for convenience but meaning no disrespect as the mother, resists the appeal and seeks to maintain the judge’s order.
2. The parties lived together from August 2002 until late October 2003. They have one child, the subject of the proceedings. She was born in May 2003.
3. In April 2010 the father brought parenting proceedings in relation to the child spending time with him and interim orders were made. A family report was ordered and produced in December 2010. The proceedings were resolved by consent orders made on 22 March 2011. Pursuant to those orders, the child lived with the mother and spent time with the father.
4. On 9 December 2013 the father brought the application, the subject matter of the proceedings before the judge. In that application, the father sought orders that the child live with him and spend time with the mother. The father proposed that the parties have equal shared parental responsibility for the child. The basis of that application and orders was because the father said, the child has expressed a strong view that she wants to live with him.
5. In response, the mother sought an order that the father’s application be dismissed. While not altogether clear, it seems that the basis for the mother’s application was that there was no warrant for any change of the then present orders. She deposed in an affidavit that there had been no significant changes and that in her opinion the current orders were working well for the child. She further said that the child had not expressed concerns about living with her.

The judge’s reasons

6. In considering the application for summary dismissal, as the judge described it, Judge Donald said that during the hearing a submission was made that, rather than dismiss the father’s application, he should order a family report to enable the child’s views to be canvassed by a family consultant. As is apparent, his Honour declined to do that and ordered the father’s application be dismissed.
7. The judge said that since the application was one seeking summary dismissal he “should take the father’s evidence at its highest” [5]. After setting out some brief background to the matter, the judge noted that the father’s case was that there has been a change in circumstances in that the child had expressed a strong wish to live with him [11].
8. His Honour referred to the decision in Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 and said that it was for the “father to demonstrate that there exists such a change of circumstances as to warrant a reopening of the residence issue” [12].
9. After observing that the court could determine whether to “summarily dismiss the father’s application as a discrete issue” the judge said:
   13. ... There are distinct advantages in dealing with the application at this point for there is the potential to save the parties significant expenditure on legal costs and to enable the parties and the child to avoid the stress of prolonged legal proceedings.
10. The judge referred to the matters which the father submitted amounted to important matters that his Honour ought to take into account in deciding the issue which were; that the father’s initial application did not seek orders that the child live with him, that the earlier orders were made by consent without a hearing on the merits and that the residence of the child had not been an issue between the parties in the earlier proceedings. His Honour rejected each of these matters as having significance to his determination.
11. His Honour said at [16] that the issue to be decided was whether the “now stated wish of the child, aged 10 years, to live with the father constitutes a sufficient change of circumstances.”
12. His Honour considered the family report produced in December 2011 and noted that in that report it is said that the child could not say with whom she wished to live.
13. He then said at [18]:

Taking the father’s evidence at its highest, the court accepts that the child is now expressing a view that she would like to live with the Father. She is three years older.

14. The father relied on the authority of SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 as being persuasive of the issue. His Honour distinguished the case on its facts. He said that each matter must depend on its own facts. He continued at [21]:

... Here the proceedings have only just commenced. The child has not been interviewed for the purpose of a family report and the rationale behind the “rule” applies in full force... .

15. He then concluded that the views of a ten year old child expressed less than three years after consent orders did not constitute a sufficient change of circumstances to warrant a re-consideration of the parenting issues [22].
16. His Honour said:
    23. This is particularly so in the circumstances of this matter. The application is based upon the views of a 10 year old child. If this court’s conclusion was otherwise, parents may be wary of imposing appropriate boundaries or disciplining their children for fear of further litigation. Children's views may change frequently. Does that mean that on each occasion a new view is expressed, the issue of parenting arrangements is again open to re-litigation? That must not be the case for the parties and the child would be living under a constant threat of court proceedings and change. That must not be in a child’s best interests. It must also not be in the community’s best interests as scarce resources of the court would then be used again and again to the detriment of the court being able to hear more urgent matters.
    24. I also reject the submission of the father that the child’s view should be canvassed by a family consultant and that a decision regarding dismissal of the father’s application could then be made. To follow the path suggested by the father would again involve the child in the process. The rationale of the “rule” serves to prevent this. In any case, I have taken the father’s evidence at its highest. I have accepted for the purpose of this argument that the child has expressed clear views that she now wishes to live with the father. To refer the matter to a family consultant would serve no purpose.

The appeal

17. While it is not entirely clear, it seems that the judge considered the mother’s application was for summary dismissal. In coming to his determination, the judge referred to Rice & Asplund and thereafter referred to “the rule”. I assume that his Honour was referring to what has become known as the “rule in Rice & Asplund”.

The rule in Rice & Asplund

18. The “rule” in Rice & Asplund refers to remarks made by Evatt CJ in that case at [78,905-06]:

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. ...

19. Evatt CJ continued:

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.

20. The “rule” is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363).
21. It is to be recalled however, as was said in Poisat & Poisat [2014] FamCAFC 128, referring to the decision of the High Court in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 where Brennan J said (at 537):

It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that principles may harden into legal rules which would confine the discretion more narrowly than the parliament intended.

22. It is not relevant to the determination of this case to consider whether the cases concerned with Rice & Asplund have “hardened” into binding principles. However, there is no doubt that the concepts to which Rice & Asplund and the cases which follow it refer are entrenched in the Family Law jurisprudence.
23. As to the application of the principles, the Full Court in Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 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.

24. Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which govern determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.

Summary dismissal

25. As to his Honour’s approach to the mother’s application, that is an application in the nature of summary dismissal or a determination of the threshold issue, it is useful to consider what was said in Poisat where the Full Court said:
    18. In Miller & Harrington this Court said:
        72. It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
    19. Earlier, in Newling and Newling; Mole (Applicant) (1987) FLC
        91-856, Nygh J, with whom Barblett and Fogarty JJ agreed, said 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. ...

(emphasis added)

26. Turning then to the appeal; 8 grounds of appeal were raised in the notice of appeal. Ground 7 was abandoned in written submissions. In the written submissions on the appeal, counsel for the father consolidated several of the appeal grounds together and I will consider the grounds in the same way.

Grounds 1, 2, 3 and 4

27. Ground 1 picks up the matters to which his Honour referred in paragraph 23 to which I have just referred and argues that in relying on the matters there set out, his Honour took into account matters irrelevant to the determination before him. Further, it argues that his Honour erred by taking those matters into account when none of them had been put to him in submissions, and, I infer, no submissions addressed to them.
28. Ground 2 contends that the judge failed to take into account or give any proper consideration to the child’s wishes.
29. Ground 3 argues that the judge erred in failing to consider the particular needs of the child, to whom the application referred but rather referred to general matters.
30. Ground 4 contends that the judge erred in giving precedence to the matters to which he referred in paragraph 23 instead of giving a proper consideration of the child’s wishes.
31. It was argued that the relevant change of circumstances to which attention ought to have been directed in this matter was the child’s “significantly different views” from those expressed, or, more accurately, not expressed in the family report produced in December 2010.
32. It was contended that the evidence of the child’s views was compelling. It is useful at this point to refer to the father’s evidence which was that since early 2012, the child had been expressing a wish to live with him and this insistence was unabated. The father further deposed that the child had told her mother of her wishes. Although the evidence in this regard is somewhat different from the position asserted by the father’s counsel to the judge in submissions, and counsel conceded this morning in oral argument that counsel was incorrect in his expression of how this list came about, the child prepared a list of reasons why she no longer wanted to live with her mother. That list was before his Honour. Further the father said that in February 2014 the child was particularly distressed and the father suggested that she speak to the school counsellor. He said that there was a lengthy interview at which he was not present but he was later told by the school counsellor that the child wanted to live with him. It was also the father’s evidence that on another occasion, he was called by the school because the child was distressed. The mother also attended the school and collected the child. Later the child told the father that her mother said she was not to see the school counsellor again. It is important here to observe that this evidence is untested and I am prepared to assume will be the subject of controversy, however, I set it out because the judge said that he was, for the purpose of the application, taking the father’s evidence at its highest.
33. It was argued that nowhere in the judge’s reasons, did he consider the child’s best interests in light of the father’s evidence which, the judge said he took at its highest. Rather, the judge focussed on what were said to be irrelevant generalities.
34. In my view his Honour failed to take into account the seminal matter necessary for a consideration of this issue – namely the best interests of the child.
35. The mother argued that the decision was one requiring the exercise of discretion and thus the well-known hurdles to appellate intervention apply. The decision is indeed a discretionary one but in this case his Honour’s consideration miscarried by reason of his failure to take into account the child’s interests as paramount and, instead introduced irrelevant and unsupported considerations which drove his dismissal of the father’s application.
36. In my view these grounds should succeed.

Grounds 6 and 8

37. Ground 6 contends that the judge erred in failing to give consideration to the “paramountcy principle”.
38. Ground 8 argues that the judge failed to give any or any proper weight or consideration to the change in the child’s circumstances from the date of the orders to the date of filing the father’s application nor addressed those matters including the child’s wishes.
39. In reality, these grounds cover much of the same ground as those to which I have already referred.
40. However, it was argued that in referring to matters such as court resources and the risk that parents will not discipline children if their wishes or views could result in court proceedings, his Honour took into account irrelevant matters and I agree.
41. These grounds should succeed.

Ground 5

42. Ground 5 concerns his Honour’s findings in relation to an authority cited to him in argument – SPS & PLS – and contends that his Honour erred in refusing to order a family report to consider the child’s wishes and the strength of those wishes and further argues that his Honour having said that he would take the father’s case at its highest was then obliged to accept that the child’s wishes should be given significant weight.
43. It is to be recalled that in SPS the court said that considerations acutely relevant to a child’s best interests can change, including, for example, by reference to the child’s age and level of maturity. (See, at [58]-[60]).
44. Clearly, his Honour did not consider this, amongst other things as being a matter necessary to be taken into account in determining the issue.
45. Whether or not the judge was wrong in his consideration and application of the reasoning in SPS & PLS is, in my view not to the point. The thrust of this ground is that the judge erred in failing to appreciate that in the earlier proceedings and, in particular, in the earlier family report, the child had not expressed a view either way about where she wished to live and thus the issue of her views were a significant change. Further it was argued that the judge, in misapprehending this issue erred in not ordering a family report by which means the child’s wishes could be canvassed.
46. In my view this ground should succeed.

Conclusion

47. In my view, the appellant has demonstrated that his Honour’s determination of the issue miscarried.
48. Whether the enquiry based on the principles articulated in Rice & Asplund and those cases which followed it is conducted as a preliminary, threshold issue or abides the full hearing of the case, it is important to repeat here what was said in Poisat:
    43. If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders. Applied at the end of the hearing - because the hearing that precedes it is “a full hearing of a ‘custody’ dispute” (SPS at [65]) - a different question can be asked:

72. While ... the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.

73. There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.

(emphasis in original)

49. The appeal should be allowed and remitted for rehearing. It is best to leave to the trial judge the questions of whether a family report should be ordered.

WATTS J

50. I agree that the appeal should be allowed and the case should be remitted for rehearing for the reasons expressed by Justice Ainslie-Wallace.

MAY J

51. I agree with the reasons of Justice Ainslie-Wallace. I would add in this case the circumstances raised by the father were not an isolated incident or trivial in nature. The primary judge was in error in dismissing the father’s application and the appeal should be allowed.

I certify that the preceding fifty one (51) paragraphs are a true copy of the
ex-tempore reasons for judgment of the Honourable Full Court (May,
Ainslie-Wallace, & Watts JJ) delivered on 18 September 2014.


Associate:

Date: 18 September 2014