B and R
[2009] FCWA 123
•21 SEPTEMBER 2009
[2009] FCWA 123
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | B and R [2009] FCWA 123 |
| CORAM | : | CRISFORD J |
| HEARD | : | 31 AUGUST 2009 |
| DELIVERED | : | 21 SEPTEMBER 2009 |
| FILE NO/S | : | PTW 1475 of 2000 |
| BETWEEN | : | B Applicant/Father |
| AND | ||
| R Respondent/Mother | ||
| Catchwords: |
Children's issues - summary dismissal - rule in Rice & Asplund - applicable principles
Legislation:
Family Law Act 1975
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Ms D Dimond |
[2009] FCWA 123
Solicitors:
| Applicant | : | Not Applicable |
| Respondent | : | Dimond Family Lawyers |
Case(s) referred to in judgment(s):
Bain Pacific Associations & Ors & Kelly & Ors (2006) FLC 93-270
Bigg v Suzi (1998) FLC 92-799
Marsden & Winch (2009) FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Pelerman v Pelerman (2000) FLC 93-037
Rice & Asplund (1979) FLC 90-725
[2009] FCWA 123
1 On 31 August 2009 I heard an application by [Ms R] for summary dismissal of
an application by her former husband, [Mr B] for parenting orders relating to their daughter, [Leanne] born [in] October 1993. I reserved my decision and made the following orders:
(i) Within 14 days [Ms R] is to file and serve an affidavit proving service on [Mr B] of the applications she sought to be dealt with by the Court. (ii) Within 14 days [Mr B] is to file and serve an affidavit in relation to such service. 2 The orders were made given [Mr B]’s assertion after the hearing that he had not
received any documents from [Ms R]’ solicitors relating to her application for security
for costs.3 [Mr B] filed an affidavit on 7 September 2009. He also filed an affidavit of a
friend, [Mr N], on the same date. [Mr B] says he did not ever receive paper work or
mail from [Ms R]’s solicitors regarding an application for costs. He says relevantly:
“3. Regarding my letterbox clearly in the last 12 months I have had items stolen out of the letterbox, and my letterbox smashed. This has not just been my house, but also other houses in the street.”
4 I find this explanation of little assistance and at best equivocal. [Mr N] took the
matter no further. Ms Denise Dimond, [Ms R]’s solicitor, filed an affidavit setting out full details of service. She also draws the court’s attention to specific court events where the issues of costs and the application for summary judgment were raised with [Mr B].
5 I will now proceed to determine the application.
Brief background and history
6 The parties were married [in] March 1985. They separated on 25 January 2000 and were divorced on 23 March 2001. There are two children of the relationship, [Malcom], born [in] February 1990 and [Leanne], who is now almost 16 years of age. The current proceedings revolve around [Leanne].
7 There have been ongoing court proceedings between the parties since early
2000. The current orders in place relating to the time [Mr B] is to spend with [Leanne] were made on 16 October 2006. These orders were made on an undefended basis in a Duty Judge list.
8 In essence these orders are that the two children live with their mother and spend
certain defined time with their father in accordance with their wishes. There is also
provision for telephone communication.9 The orders of 16 October 2006 had been presented to the Court by [Ms R] after the publication of a Family Report on 11 August 2006.
[2009] FCWA 123
10 The present proceedings arise out of an application initiating proceedings filed
by [Mr B] on 11 March 2008. In this application he was seeking to have an equal shared care arrangement of [Leanne]. He also filed an application in a case on 11 March 2008 for an alternate weekend arrangement.
11 On the basis of his experience with the Court prior to the orders of October
2006, [Mr B] wrote seeking that four particular judicial officers not be involved in his case. The Court agreed to appoint a judicial officer who had not previously had the conduct of earlier hearings.
12 On 25 March 2008 [Ms R] responded to his applications seeking they be
dismissed. She also sought a further family report to address [Leanne]’s current wishes in regard to the matters raised by her father. Prior to the publication of this report [Mr B] filed an application in a case on 19 May 2008 seeking holiday time with [Leanne]. This application was dismissed when [Mr B] failed to attend the hearing on 16 June 2008.
13 The Family Report was published on 8 July 2008.
14 On 12 August 2008 [Mr B] filed an application in a case seeking to have the
then presiding judicial officer disqualified. The judicial officer disqualified herself on
26 August 2008.15 On 23 October 2008 [Ms R] amended her response to an application for final
orders by seeking summary dismissal of the initiating application. On 19 November 2008 she filed an application in a case seeking summary dismissal of the initiating application and security for her ongoing legal costs.
16 On 4 December 2008 [Mr B] filed a further application in a case seeking that
“[Malcom] and [Leanne] not be recognised as (my) children hence revoke any contact
orders in regards to them are revoked” [sic].17 [Ms R] filed a response on 4 February 2009 seeking summary dismissal of this application and also security for costs in the conduct of the proceedings.
18 The application of 4 December 2008 was dismissed by consent. [Mr B] was ordered to file a minute of the orders he was seeking. He did so on 19 February 2009 and by these orders sought that [Leanne] continue to reside with [Ms R], he have contact with her by email once or twice a week, by telephone twice a week and face to face contact with her at such times to be agreed upon and finalised by [Leanne]. He also sought the assistance of a Family Court counsellor.
19 On 26 February 2009 [Mr B]’s application in a case filed 11 March 2008 was dismissed. On 17 March 2009 [Mr B] amended his application for final orders.
20 At this stage he was seeking that the parties have equal shared parental
responsibility for [Leanne] and that [Leanne] spend time with him in accordance with
her wishes. He also sought a raft of other parenting orders.21 On 18 May 2009 [Mr B] filed an application in a case seeking the present judicial officer be disqualified. I refused this application.
[2009] FCWA 123
22 On 19 May 2009 [Mr B] handed the Court, for filing, a further application in a
case seeking some additional orders in relation to parenting issues regarding [Leanne].
This application was dismissed on 19 May 2009.23 On 31 August 2009 the Court considered and dealt with the following:
• [Ms R]’s application in a case filed 19 November 2008 for summary dismissal and security for costs; • [Mr B]’s application for final orders of 11 March 2008, as amended by his application filed 17 March 2009; and • [Ms R]’s response to an application for final orders filed 25 March 2008, as amended on 23 October 2008. 24 [Mr B] had not provided the Court with any material in relation to [Ms R]’s
application in a case despite orders of the Court on 17 October 2008 and 26 February 2009. However, it was clear he opposed the orders and made submissions to the Court in relation to the issues raised by counsel for [Ms R].
Applicable law – summary dismissal
25 The principles in relation to summary dismissal are well known, especially
where financial issues are in dispute. (see Bigg v Suzi (1998) FLC 92-799; Bain Pacific Associations & Ors & Kelly & Ors (2006) FLC 93-270 per Bryant CJ, Warnock and May JJ). Common law principles are applicable in these types of cases.
26 The general principles in Bigg v Suzi (supra) were summarised and adopted by the Full Court in Pelerman v Pelerman (2000) FLC 93-037 at page 87,582 as follows:
“(a) The power for summary dismissal is a discretionary one. (b) Relief is rarely and sparingly provided. (c) The parties seeking summary dismissal must show that the application is doomed to fail or has been otherwise described that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious. (d) A weak case or one that is unlikely to succeed is not sufficient to warrant termination. (e) If there is a serious legal question to be determined, it should ordinarily be determined at a trial. (f) If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.
27 The Family Law Rules 2004 also make provision for applications for summary
orders in r 10.12. Relevantly here, that rule provides for such an application where
[2009] FCWA 123
a party claims that an application or response is frivolous, vexatious or an abuse of process or that there is no reasonable likelihood of success. The Explanatory Statement considers this process should only be used when the respondent has no realistic prospect of success.
28 Applications to dismiss parenting orders on a summary basis have been recently
considered by the Full Court (Marsden & Winch (2009) FamCAFC 152 and Miller &
Harrington (2008) FLC 93-383).29 In this case although no reference is made by [Ms R]to what is commonly called the rule in Rice & Asplund (1979) FLC 90-725, it is a matter worth noting.
30 Immediately following the orders made in his absence on 16 October 2006 [Mr B] communicated with the Court complaining that the judicial officer who made those orders had previously disqualified himself, at [Mr B]’s request, from hearing the matter further. On 30 October 2006 he was advised by the Court that if he was aggrieved by the orders he should take legal advice on the options available to him. It was also noted that [Mr B] had failed to attend a conference on 8 September 2006 and had not provided any explanation for his absence. In those circumstances it was presumed he did not wish to be heard and the orders were made.
31 There was no further action by [Mr B] until the filing of his further initiating application for final orders on 11 March 2008.
32 Although the rule in Rice & Asplund (supra) was not specifically referred to, I am satisfied that it operates in tandem here with the principles in relation to summary dismissal. The rule in Rice & Asplund is that a party needs to demonstrate substantial, significant, material or a strong change of circumstances that make it proper in the best interests of children for pending litigation to continue.
33 Overarching this “rule” is the fact a Court is bound to take into account the best interests considerations and also specific legislative requirements.
34 The Full Court in Miller & Harrington (supra) canvassed these specific requirements pursuant to the legislation:
“73 The application of the rule occurs within proceedings to which the provisions of Division VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act. 74 Included among the mandatory requirements upon a court are: the obligations to (as seen) ‘decide which of the issues in the proceedings require full investigation and which may be disposed of summarily’ (s 69ZQ(1)(a)) and to ‘deal with as many aspects of the matter as it can on a single occasion’ (s 69ZQ(1)(g)). 75 The provisions of s 69ZR(1), empower the court to ‘make a finding of fact in relation to the proceedings’, to ‘determine a matter arising
[2009] FCWA 123
out of the proceedings’ and to ‘make an order in relation to an issue arising out of the proceedings’ if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “… at the same time as making final orders”.
76 The terms of s 69ZN of the Act, which set out the “principles for conducting child-related proceedings” also apply to a hearing in which the rule in Rice & Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:
(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.
… ”
35 The Court further considered the procedure to be adopted in applications of this
sort. Given [Mr B] has failed to comply with court orders to file affidavit material from which the Court can understand his position, it is impossible to determine the question simply on the evidence he has provided.
36 In these circumstances the most appropriate way to proceed is to consider all the
applications and orders made by the Court since the institution of proceedings on 11 March 2008. I will not take into account the extensive affidavit material filed by [Ms R]. I will take into account [Mr B]’s oral submissions.
37 I also intend to refer to the earlier proceedings insofar as they relate to the
Family Report of 11 August 2006. I have referred to the basis upon which I have taken both that report and the report commissioned for the present proceedings into account later in my judgment.
38 I find it appropriate to consider that material at this stage of the case in order to
assess whether it is necessary or proper in the best interests of [Leanne] to allow these
further proceedings to continue.
Discussion
39 [Mr B] says he is currently seeing [Leanne] and communicating with her. He
saw her on his birthday [in] May 2009. He is able to email her, send text messages to her and speak to her on her mobile phone. He says he has approached the matter in an appropriate manner taking into account her age.
40 In the conciliation conference of 8 September 2006 it is noted that [Ms R] had
prepared a Minute of Orders reflecting the children’s wishes as presented in the Family Report published on 11 August 2006. This was the same Minute of Orders presented to the Court and upon which orders were made on 16 October 2006.
[2009] FCWA 123
41 It is useful to review the content of the Family Report of 11 August 2006. Although [Mr B] has expressed disquiet with the content of the two Family Reports, his opposition or disagreement stems from assessments made by the Family Consultants of him personally rather than anything else. He has not suggested that [Leanne] is misreported. Indeed, he points out correctly that [Leanne] has never said she did not want to see him. Given that, I have reported what I consider to be the parts of the reports that are uncontentious.
42 At the time of the first report in August 2006 [Leanne] was aged 12 years
10 months. When [Leanne] was observed with [Mr B] it was reported she
demonstrated an ability to disagree with him, and correct his recall of events.43 [Leanne] said she did not want to see her father on alternate weekends as he then
requested, and she did not want to spend mid-week time with him. She wanted to receive emails from him as they were easier to answer than telephone calls. She proposed spending time with him on his birthday, but preferred a telephone call from him on her birthday. She wanted to spend each alternate Christmas with him.
44 It was reported that despite [Leanne]’s apparent ability to contradict [Mr B] in a
controlled setting, she did appear to be wary in her discussions with him about time.
She wanted to decrease the time she was spending with him at that stage.45 The report favoured the children having a say in the time they spent with the
parents.
46 At the time of the second report in July 2008 [Leanne] was 14 years and
8 months. It says she presents as a bright, intelligent young person with a degree of confidence and the ability to articulate her views clearly. She says she is nervous about attending Court as she wonders why she has to “go through this again”. It is noted she has a close and loving relationship with her mother.
47 [Leanne] describes her father as very overpowering and determined to get his
own way. Although she loves her father, she says she does not feel at ease with him. She is wary of him. She describes him as “like a volcano waiting to erupt” when he is in an angry mood. However, she can acknowledge she enjoyed the time she has spent with him in the past but wishes he would not get so aggressive and would listen to her.
48 It is pertinent to note that she would like her father to understand that none of the
court process or proceedings are helping to assist her in seeing him. She said “it is just
stress and a waste of time”.49 [Ms R] told the consultant she wants [Leanne] to spend time with her father when [Leanne] wants to. [Mr B] says it was not one of their better communication sessions.
50 The interview and brief observation of [Mr B] with [Leanne] was strained.
51 [Leanne] is keen for her father to understand that his persistence and coercive
manner is not helping their relationship. She finds coming to court stressful and
would like to negotiate time with [Mr B] by email.
[2009] FCWA 123
52 The reporter suggests that if there is agreement, attending mediation may help
the communication between them and help [Leanne] to feel heard by her father. There
is no evidence before me to suggest that [Leanne] does agree to this.53 [Leanne] is now almost 16 years of age. Her views are well articulated and I
have no doubt she is a mature and intelligent young lady. She finds the court process
to be stressful and of little assistance to her.
Applying the facts to the law
54 I now turn to consider whether there is a material change of circumstances since
the making of the orders on 16 October 2006 that suggests it is in [Leanne]’s best
interests for the litigation to continue.55 I am mindful that [Mr B] was not present when the orders were made in 2006. However, he was shortly thereafter fully aware of the content of those orders. He took no steps to change those orders until March 2008.
56 Since that time he has made a number of interlocutory applications, almost all of
which have been unsuccessful. Of note is his application of 4 December 2008 where
he sought to distance himself from his children.57 He has consistently sought to change the orders he is seeking relating to
[Leanne].
58 He says that he is currently seeing her and it appears that the time she spends
with him and the communication she has with him is in accordance with her own wishes. In these circumstances the court must question whether there is a serious issue to be tried.
59 I do intend to grant the application to summarily dismiss [Mr B]’s present application. I do so for three main reasons:
• I am not persuaded that all of the orders [Mr B] seeks, for example, that [Leanne] sees him in accordance with her wishes, are necessarily “doomed to fail”. However, any orders that go further than this are likely to be doomed to fail. What does cause considerable disquiet is the obvious use of court proceedings for an apparently vexatious and frivolous purpose. Again, this is highlighted by the nature of the orders sought by [Mr B] on 4 December 2008. The continuation of the proceedings serves no purpose save to aggravate [Ms R] and take up an inordinate amount of court time. • [Leanne] is now a month or so shy of 16 years. She has consistently articulated a view to spend time with and communicate with her father in accordance with her own wishes. This is presently happening. The Court concludes there is no serious issue to be tried. • In the family reports there is a consistent expression by [Leanne] to have her father step away from court proceedings. [Leanne] has rather poignantly articulated in the last family report that [Mr B] is doing more damage by
[2009] FCWA 123
pressing matters and forcing the issue through the proceedings than if matters
were left to evolve.
60 I am satisfied the impact of these proceedings is adverse to the best interests of
[Leanne].
61 In order to have orders that not only reflect [Leanne]’s wishes, but are in line
with the present regime of time spent I intend to discharge the earlier orders and make one order to reflect the present position. Before I do so I will hear from the parties or their legal representatives in this regard.
Applicable law – security for costs
62 Given my reasons in relation to the application for summary dismissal I do not intend to canvass this part of the application.
| Orders | ||||||||||||||
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I certify that the preceding [62] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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