Gilshannon & Giles [2008]

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Consent orders were made that the children live with the mother and that the parties have equal shared parental responsibility for major long term issues – Children spending time with the father – Less than three months after the consent orders were made the father filed an application seeking major changes to them – Consideration by the Federal Magistrate of the rule in Rice and Asplund on the papers – Father’s application dismissed – Whether the Federal Magistrate failed to find that the alleged denial by the mother of a meaningful relationship to the father with the children and the mother’s alleged neglect of the children in relation to their medical conditions, constituted a significant change of circumstance – Whether Rice and Asplund in now “old law” because of the 2006 amendments to the legislation – Whether the Federal Magistrate failed to deal with the application on the merits and did not apply the paramountcy principle – Whether the Federal Magistrate erred in applying his discretion by considering the time that had elapsed since the consent orders as a relevant factor – Appeal dismissed

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gilshannon & Giles is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: NA 1 of 2008
File Number: ROC 626 of 2007

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. On 30 April 2007, Federal Magistrate Slack made orders, with the consent of these parties, providing in great detail arrangements for the care of their two children, Andrew and David, born in 2001 and 2005 respectively. The matter had been listed for trial before the Federal Magistrate, considerable material had been filed and each party was represented by a solicitor and barrister. The orders provided that the children live with the mother and that the parties have equal shared parental responsibility for major long term issues. Andrew was to immediately commence spending time with the father every third weekend. David was to be with the father for periods gradually increasing until October 2007 when he also would be with him every third weekend. Andrew was also to spend a substantial part of school holidays with the father, with a graduated holiday provision applying to David.
2. At the time of the orders the mother was living in the town “M” in Queensland. As to her then future residence, the orders provided:
   1. That the mother not relocate further than 50km from [the town M]:-

(a) for a period of six years without either the written consent of the father or an order of the Family court or the Federal magistrates Court; and

(b) after six years from the date of this order, without providing to the father two months written notice in writing.

The father then lived, and remains, in the town “G”, about three and a quarter hour’s drive from the mother’s residence.

1. Less than three months after the parties obtained these orders, the father filed an application seeking major changes to them. By agreement of the parties, Federal Magistrate Coker considered the application of the rule in Rice and Asplund (1979) FLC 90-725, on the papers, in chambers. The learned Magistrate dismissed the father’s application on 30 November 2007.
2. These reasons are in respect of the father’s appeal against that order.
3. The father filed an application to adduce further evidence in support of the appeal, but that application was abandoned.

Grounds of appeal

1. The father relied upon four grounds, which were:
   1. His Honour erred in failing to find as a matter of fact that the child [a reference to Andrew] has suffered neglect including emotional abuse and therefore erred in failing to follow the structure of the Act to determine what is in a child’s best interest under s 60CC resulting in the misapplication of the principals [sic] of Goode and Goode (No.2) and/or Rice and Asplund.
   2. His Honour erred in finding of fact that the mother has failed to fulfil her parental duties under s 60CC(4) in particular (b)(i) and (b)(ii) pursuant to Section 60CC(2)(b).
   3. His Honour has incorrectly applied his discretion to the significance to the change of relationship of the mother and subsequently erred in applying Rice v Asplund (1979) 6 FamLR 570 and Goode and Goode (2006) (No 2) HCA 315.
   4. His Honour erred in applying discretion by considering the time that has lapsed since the orders of the court by way of assessment of the merit of the application.
2. I think all of these grounds can be discussed together. However, the arguments need to be considered in light of:

(a) the material that was before Coker FM; and

(b) the learned Magistrate’s reasons.

(a) The material that was before the Federal Magistrate

1. The father commenced fresh proceedings on 26 July 2007. On an urgent basis he sought an order to enable him to collect Andrew for a medical appointment. In that respect, an order was made in the Queensland Magistrates Court at the town “G” that the mother attend a practice in that town with Andrew, to consult with a paediatrician. The father’s amended application for final orders was filed on 15 November 2007. He sought the return of the children to the area in which he lived and a week-about care arrangement thereafter.
2. In his affidavit filed in support of the urgent application, the father had deposed:

This matter was recently the subject of heavily litigated proceedings in Brisbane and throughout such action I was never made aware by the respondent mother of the child’s urgent need for medical aid.

1. In his affidavit filed 15 November 2007 (“father’s principal affidavit”) the father deposed:
   1. Since those orders were made, I have not enjoyed a meaningful relationship with the children for the following reasons: -

(a) Both of my children have medical conditions in relation to their bowels, particularly [Andrew] and the mother is clearly refusing to allow me to be kept appraised of his medical developments in this regard;

(b) I often am not permitted telephone communication with the children, with the mother turning the television up loud, putting the children on the play station when they are talking to me or telling them that they must go because dinner is ready;

(c) The transport costs have proved crippling to each party and are simply no longer practical;

(d) To my knowledge and understanding, several new persons have entered the children’s lives without my knowledge, taking on a surrogate parental role – these being partners of the respondent;

(e) The principal idea of the mother and myself working together to make these orders work is simply not occurring.

1. The balance of the father’s affidavit contained complaints about the mother’s attitude towards medical treatment of Andrew, at least in respect of her attending medical appointments and communicating with the father and that there were difficulties in his involvement with the children, caused by distance and a lack of communication.
2. The father also relied upon observations, opinions and recommendations, in a report of Ms J, a social worker, though that report issued in May 2006, nearly a year before the consent orders were made.
3. In her affidavit filed 5 November 2007, the mother stated that the father did not initiate any family dispute resolution prior to filing his application in July 2007. She also pointed out that order 26 of the orders made 30 April 2007 required the father and her to attend mediation prior to filing any application with the court.
4. As to the allegation in the father’s first affidavit that the mother had never informed the father of Andrew’s medical problems, the mother deposed that his condition was the subject of “much scrutiny in the Family Law Court proceedings which were finalised on 30 April 2007”. The mother annexed letters obtained from Dr C, a paediatrician, about Andrew’s condition in June and September 2006, and a Family Report of Ms A, provided in November 2006, which discussed Andrew’s medical condition and statements made by the father in respect of it.
5. As to any difficulties that the father perceived relating to medical treatment of the children arising after the orders, the mother in her material, including the written submissions put before Coker FM, disputed any misconduct on her part.
6. As to the father’s allegation that new persons had entered the children’s lives, in her further affidavit, filed 19 November 2007, the mother deposed:
   1. The father alleges that I have commenced a relationship following the making of the Court Order on 30 April 2007. I say that the father was fully aware that I had commenced a new relationship at the time of the Family Law Court proceedings. I note that there was reference to this relationship by the family report writer, [Ms A], in the family report filed in the Federal Magistrates Court on 27 November 2006. My current boyfriend ... does not live with the children and I. In any event, [he] will shortly be deployed overseas in his [employment]. As such, I say that there has been no material change in circumstances in this regard.

(b) The judgment of Coker FM

1. The learned Magistrate’s reasons for dismissal of the father’s application are contained in a small number of paragraphs of his judgment which, with the omission of some quotations, are :
   1. In particular, in his affidavit filed in support, the father says that he has not enjoyed a meaningful relationship with the children for a number of reasons. They are detailed in paragraphs 5(a), (b), (c), (d) and (e). In a nutshell, they relate to issues with regard to the medical conditions, unfortunately experienced by both of the children, issues of telephone communication, the costs of transportation, issues with regard to persons entering into the children's lives without, the father says, his knowledge and, a general contention that he and the mother are not able to work together to make arrangements with regard to the care and supervision of the children.
   2. I am referred, by the legal representatives for each party, understandably, to the decision in Rice v Asplund (1978) 6 FamLR 570 or alternatively, (1979) FLC 90-725. Both sets of legal representatives agree that the appropriate course to follow in relation to the matter was to, as a preliminary matter, determine the issue as to whether there has been a change in circumstances....

...

1. It is contended on the part of the mother that there is no new issue arising in relation to these proceedings. I must say that on the face of the material that is before the Court and the various matters that have been raised, I am very much of the view that the position taken in respect of this matter, on the part of the father, is not based on any new matter. As I indicated, there are issues with regard to whether there has been full disclosure, for example, in relation to the children's medical conditions.
2. Quite clearly that was a known factor and was the subject of comprehensive orders that were put before the Court. The issue of telephone communication was also contended before the Court and specific orders were put in place. The father says that he is not having the opportunity for time to be spent by him with the children, particularly by way of communication with the children because of disruption by the mother. I would think that the more appropriate course is for the father, if able to contend that that was as a direct result of the mother's non-cooperation, would bring an application in relation to contravention of the orders.
3. Similarly the costs associated with the transportation were an obviously [sic] consequence of the orders that had been made in relation to the responsibility of each parent of some part of the transportation of the children. The suggestion that new persons have entered into the children's lives without the father's knowledge and have taken on a surrogate role is, with respect, unable to be fully contended or understood. As I indicated, the particular statement arising from Rice v Asplund (supra) recognises that there is an ever present change that occurs in the lives of all persons within our society. The mother may or may not have formed new friendships, new relationships or whatever, as of course, would the father.
4. It is important that each parent communicate such matters, but in the early stages, one would struggle to accept that there could be a suggestion that those new persons might in some way constitute a radical change in respect of arrangements with regard to the children and to their lives, particularly when it is now the case that those orders are less than three months old at the time of application being made. In my view, there is no basis upon which there could be any possible suggestion of significant or substantial change that has arisen, other than, perhaps, some bedding down difficulties that might arise with regard to any orders.
5. Without hesitation I find that there is no proper basis upon which the application brought in relation to these proceedings could properly be contended to arise as a result of new matters that have come before the Court or new matters that were not revealed or known at the time that the consent orders were made. In my view, the application by the father must fail and that the proceedings should therefore be dismissed. I accordingly order.

(c) Discussion

1. At the hearing of the appeal, Mr Baston of Counsel appeared for the father, who had not been legally represented when he filed his summary of argument. Mr Baston adopted that summary, though he said little in respect of it. However, points raised in it will be addressed after consideration of Mr Baston’s short oral submissions which in turn I will come to after brief observations about the father’s material.

(i) Comment on the father’s material

1. In my view, the opinions of the first Family Reporter were of little, if any, significance to the question that Coker FM addressed, namely whether, since the orders of April 2007, a change of circumstance sufficient to justify relitigating parenting issues had occurred. As seen, Ms J’s report issued nearly a year before the making of the consent orders, by which time Ms A had done a more recent report.
2. Secondly, the assertions in the father’s principal affidavit are not so much allegations of fact as the father’s inferences from facts or his mere opinions. For example:
   1. It is my understanding that the mother’s belief is that he only has problems whilst in my care. My concerns with this view is that not only does it represent her attitude towards myself, but that attitude flows on to her not being child focused in relation to [Andrew]’s needs and medical treatment as required.
   2. I was forced to bring an application to compel the child to attend a paediatrician. ... (emphasis added)

...

1. ...the mother is more inclined to blame me, ...
2. ...The action of the mother begets negligence.
3. This type of disposition does not generally advance a party’s case.

(ii) Mr Baston’s submissions

1. With regard to the father’s argument that there was evidence before Coker FM to support the contention that since the consent orders circumstances had changed significantly, Mr Baston suggested that the material before Coker FM demonstrated a dramatic escalation , either in Andrew’s medical condition or in the recognition of that condition, after the consent orders. He pointed to an email from the mother in which she referred to surgery for Andrew. However, the mother’s comment did not say that surgery was necessary or that she considered the child should undergo it. She said, in respect of a proposal by the father to take Andrew for examination:

You will find that the recommendation will be to do surgery on him to remove a lower part of his bowel, and personally, I do not wish that to happen. ...

1. Any development constituted by this communication was in respect of the father’s knowledge of a recommendation, not of the child’s condition itself.
2. A development in relation to the father’s knowledge of a recommendation for treatment of Andrew’s condition, which the mother did not propose to follow, certainly would not obviously give rise to a need to reconsider parenting arrangements for the child.
3. Insofar as the father might have argued that the mother’s failure to earlier tell him of the recommendation constituted some failure of parental duty, the consent orders provided, in relation to medical issues for the children:
   1. That in the event either child sustains any serious medical problem, serious injury, serious illness, medical emergency or hospitalisation whilst they are in the care of either parent, then the parent whose care the child is in shall immediately notify the other parent.
   2. That the parties each provide to the other names and address of any of the children’s treating doctors, dentist and health care providers to provide to those health care provider any information in relation to the children that they may require.
   3. That both parties authorise the children’s doctors and treating medical practitioners including psychologists to release information to the other party regarding the children.

...

1. That the Mother advise the father 21 days in advance of any medical appointments the children have if the appointment is made more than 21 days in the future and as soon as possible if less notice is available, and the father be at liberty to attend such medical appointment with the mother.
2. In those circumstances, as he did in respect of an issue about telephone communication between the father and the children, the learned Magistrate was entitled to consider that other courses for redress, other than relitigating parenting arrangements, were open to the father.

(iii) Argument in the father’s written summary

1. I now turn to other points primarily argued through the written summary, those being:

• That the learned Magistrate failed to find that the alleged denial by the mother of a meaningful relationship to the father with the children and the mother’s neglect of the children in relation to their medical conditions, constituted a significant change of circumstance.

1. As pointed out, the father does not so much rely on events themselves as constituting a change of circumstance; for example, a failure to take a child to a medical appointment or several medical appointments, but rather relies on his categorisation of such events as demonstrating neglect. Yet, for example, the mere fact that an order was made on his urgent application, does not establish neglect on the mother’s part.
2. The position in relation to the alleged denial of a meaningful relationship is similar. Even if one was to take the assertions made by the father at their highest, the question for a judge considering an application, such as in the circumstances before the learned Magistrate here, would remain whether to reopen parenting issues to examine these assertions or, if the orders provided the means by which those issues could be considered in enforcement proceedings, whether that was the better course. This, in effect, is the question that the learned Magistrate addressed.

• Rice and Asplund is now “old law” because of the amendments effected to Part VII of the Family Law Act 1975 by the Family Law Amendment (Shared Parental Responsibility) Act of 2006 and because of what was said by the Full Court of the Family Court in Goode and Goode (2006) (No.2).

1. Shortly before I commenced the hearing of this appeal, I delivered judgment in another appeal, SPS and PLS [2008] FamCAFC 16. I made a copy of that judgment available to counsel in this appeal. In SPS and PLS I expressed the view that the rule in Rice and Asplund is still “in effect good law” though the facts that arguably constitute a sufficient change of circumstance justifying a rehearing must be assessed in the light of the law as it now stands. In this regard, in contrast to the position in SPS and PLS the law as it stood at the time of Coker FM’s decision was no different to the law when the consent orders were made.

• That the learned Magistrate failed to deal with the application on the merits and did not apply the paramountcy principle

1. As I also discussed in SPS and PLS, the Rice and Asplund rule is but a manifestation of the best interests principle. It will sometimes be in a child’s best interests to decline relitigation of issues already decided by the court, by the application of that rule. Often, however, in the application of the rule, this rationale is implied rather than expressed. I see no reason here to think that in the application of the rule, the learned Magistrate was unaware that it represented a manifestation of the best interests principle.
2. Moreover, in this particular case, the circumstances existed in which the rule could be given great weight; the recency of the orders; the substantial change sought by the father (whereas as the learned Federal Magistrate pointed out, a specific enforcement application may have been appropriate, or, I observe, an application for some specific and less drastic adjustment to the orders, for example, because of unexpected travelling costs); uncertainty whether many similar problems would not arise, even if the changes sought by the father were made; and the nebulous nature of the father’s assertions.

• That the learned Magistrate erred in applying his discretion by considering the time that had elapsed since the consent orders as a relevant factor

1. The husband’s submission was that the period in question should not have been a relevant factor, where there are reasonable grounds to suspect neglect and/or abuse. The simple answer is that this was a relevant factor, though it may be given less weight than other factors in particular cases. Had the allegations of abuse and neglect been clear, with no means of redress, save for re-opening parenting issues, available, the period of time may have been of little weight. That, however, was not the position before Coker FM.

Conclusion

1. The appeal is one from an exercise of discretion. As Brennan J said in Norbis v Norbis [1986] HCA 17; (1986) FLC 91-712 at 75,178:

The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

1. In conclusion, I find no merit in any of the arguments put, nor in the grounds of appeal. Accordingly, the appeal should be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:

Date: 20 March 2008