Bendon & Bendon
[2021] FamCA 396
•7 June 2021
FAMILY COURT OF AUSTRALIA
Bendon & Bendon [2021] FamCA 396
File number(s): DGC 672 of 2014 Judgment of: MCEVOY J Date of judgment: 7 June 2021 Catchwords: FAMILY LAW – CHILDREN – Rice & Asplund threshold hearing – previous final parenting orders were made in 2015 and 2017 – Whether the mother’s application to re-open proceedings and to have new parenting orders made should be struck out – Where the mother submits that her application should not be regarded as a Rice & Asplund application as the existing 2017 orders varied the 2015 orders and were not made following a final hearing on the merits – Where the mother submits that her application should not be struck out and says the fresh evidence before the Court demonstrating a change of circumstances is primarily that the children are older since the last orders were made and that the Court should infer that the limited contact between the children and the mother has been going well – Where the father submits that the mother’s application is entirely hopeless, not supported by probative evidence, and that none of the material produced by the mother amounts to changed facts and circumstances or fresh evidence –Where it is found that the mother is required to meet the threshold test and that she has failed to provide any evidence that there had been a material change in circumstances pursuant to the principles in Rice & Asplund – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where the father seeks a vexatious proceedings order against the mother under s102QB of the Family Law Act 1975 (Cth) – Where the mother has initiated most of but has not been successful in any of the litigation between the parties which has been on-going since 2014 – Where it is found that the mother has frequently instituted or conducted vexatious proceedings in relation to parenting issues – Order made against the mother pursuant to s 102QB.
FAMILY LAW – COSTS – Circumstances justifying order – Where father seeks costs against mother – Where it is found the mother’s conduct and that she has been wholly unsuccessful in relation to her applications for increasing time with the children justify the making of a costs order against the mother on a party/party basis.
Legislation: Family Law Act 1975 (Cth) s 102QB, 117 Cases cited: Cardus & Lavrick [2020] FamCA 579
Defrey & Radnor [2021] FamCAFC 67
Rice & Asplund (1979) FLC 90-725
SBS & PLS (2008) FLC 93-365
Number of paragraphs: 26 Date of hearing: 7 June 2021 Place: Melbourne Counsel for the Applicant Mr Levine Solicitor for the Applicant Mr McMonnies Solicitor for the Respondent Ms McGregor ORDERS
DGC 672 of 2014 BETWEEN: MS BENDON
ApplicantAND: MR BENDON
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
7 JUNE 2021
BY CONSENT IT IS ORDERED THAT:
1.The husband have 60 days from the date hereof to forthwith effect a refinance and transfer of the real property at GG Street, I Town in the State of Western Australia.
2.In the event that the transfer and/or sale occurs by way of HH Company [property settlement] transaction, then the husband be appointed as the wife’s attorney for the purposes of the completion of any documents so as to give effect to the HH Company transaction.
3.The husband and the wife each do all things and sign all documents so as to discharge the mortgage loan with Bank West as may be required and all documents as may be required so as to effect a transfer of the real property into the name of the husband.
4.In the event that the husband has not effected the transfer and refinance into his own name by 7 August 2021, then the following occur:
(a)the husband and the wife do all things and sign all documents to place the real property at GG Street, I Town, Western Australia on the market for sale;
(b)the selling agent and the sale price be as agreed, but if there is no agreement then as nominated by the President of the Real Estate Institute of Western Australia;
(c)the conveyancer for the sale be as agreed between the husband and the wife but if there is no agreement, then as nominated by the President of the Law Society of Western Australia; and
(d)the terms and conditions of sale and the sale price be as agreed but if there is no agreement, then as nominated by the appointed selling agent.
5.Upon a sale being achieved, the proceeds of sale be disbursed as follows:
(a)in payment of all costs, commissions and expenses of sale;
(b)to discharge the mortgage and any other encumbrance affecting the real property; and
(c)the balance to the husband.
6.Liberty to apply be reserved to the parties concerning the terms and conditions of sale.
7.Pursuant to section 106A of the Family Law Act1975 (Cth) (‘the Act’) a Registrar of the Family Court of Australia be requested to sign any and all documents required to be signed by the wife and/or husband so as to give effect to the discharge of mortgage and/or sale and/or transfer.
THE COURT ORDERS THAT:
8.The mother’s Initiating Application filed 3 October 2018 and Application in a Case filed 9 July 2019 be otherwise dismissed.
9.Pursuant to section 102QB(2) of the Act the mother be restrained from instituting proceedings for parenting orders under the Act in a court having jurisdiction under the Act in relation to the three children of the marriage, unless leave of this Court is first obtained.
10.The mother pay the father’s costs, on a party-party basis, of and incidental to her applications of 3 October 2018 and 9 July 2019 insofar as they seek a variation of the existing parenting orders.
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 Bendon & Bendon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
McEVOY J:
On 31 March 2020, Alstergren CJ made orders which included that this matter be listed to a date to be fixed for hearing of a preliminary question on whether the applicant mother’s application should be struck out and whether the mother may rely on new evidence. The Chief Justice also ordered that for the purpose of the hearing on the preliminary question, the mother have leave to file an affidavit with material she seeks to be considered in her application to file new evidence. His Honour noted that that was not an order allowing evidence to be relied upon – only that whatever evidence there was be made available if a Judge required access to it in order to consider the application. The Chief Justice also gave leave to the respondent father to file and serve any further affidavit in response to the mother’s affidavit.
The applications in question comprise the initiating application in a case dated 3 October 2018 filed by the mother, and the mother’s application in a case dated 9 July 2019. It will be observed by reference to both those applications that the mother has sought a variety of orders. However, in a document headed “Outline of Case” filed on behalf of the mother on 31 May 2021, the mother appears to indicate that she is limiting her application to seek orders as follows.
First, that she be able to attend at the contact centre in Suburb JJ in Western Australia on two occasions per year during school holidays to spend time with the children upon four weeks’ notice of her intention to do so, such time to be supervised by the centre until the centre deems it no longer necessary. Secondly, that the father pay the balance outstanding for child support owing to her after deduction of the costs order made against the mother on 16 February 2021 in the sum of $2,522.99 within 30 days. Thirdly, mutual non-denigration orders. And fourthly, that in the event that the father fails to refinance the property GG Street, I Town, Western Australia within 60 days, that the property be sold and the mortgage in joint names be discharged in full from the proceeds of sale.
It is said by her counsel that the mother relies upon her application of 3 October 2018 which I have mentioned, her application in a case filed 9 July 2019 which I have also mentioned, two affidavits that she has filed, the first dated 21 January 2021 and the second dated 25 May 2021, and on the affidavit of one Ms KK affirmed 17 August 2018. A short summary of argument is set out in the mother’s outline of case, albeit that the argument therein has been enlarged and expanded upon in argument today by the mother’s counsel.
The position which the mother appears to advance is that the application she presses should in fact not be regarded as a Rice & Asplund application at all, because Cronin J in his judgment of 26 April 2017 varied the final orders made in 2015 by Johns J. It is said by counsel for the mother that the hearing before Cronin J was not a final hearing on the merits, and therefore that the threshold to be surmounted by the mother is not the usual Rice & Asplund threshold. He says in any event that if he is wrong about that, then the strictness upon which the fresh evidence required to discharge the burden in Rice & Asplund is to be assessed, will depend on the nature of the hearing that has occurred, resulting in the orders that it is sought to set aside or vary.
Counsel for the mother submits that there is no basis to strike out the mother’s applications, and that they should be dealt with in the ordinary course. He refers to the two affidavits sworn by the mother and relies also, as I have indicated, on the affidavit of Ms KK affirmed 17 August 2018. Ms KK is a supervisor at the relevant contact centre. The mother points to the fact that the children have become older since the decision of Cronin J, and she says that it is time for them to come to a new stage in their relationship with her. She submits that the Court should infer that the limited contact which has been proceeding between them must be going well. This, the mother says, is the fresh evidence which is relevantly before the Court.
In support of his submission that the test laid down by the Full Court in Rice & Asplund should not be taken to govern the present application, counsel for the mother refers to the recent decision of the Full Court of this Court in Defrey & Radnor [2021] FamCAFC 67, and in particular to what their Honours said at paragraphs 18, 19 and 21. He refers to the extract from SBS & PLS (2008) FLC 93-365 set out by the Full Court in paragraph 18, and emphasises the Full Court’s observation in paragraph 21 that the rule focuses particularly on section 60CC(3)(l) of the Act and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child.
I observe that the central point made by the Full Court in Defrey & Radnor is in paragraph 19 in terms which one would expect: namely that the Rice & Asplund test applies to all applications which seek to revisit parenting orders. There can be no doubt that the application the mother has brought in her initiating application of 3 October 2018 and her application in a case of 9 July 2019 are applications seeking to revisit parenting orders, and therefore that she is required to satisfy the Rice & Asplund test which has been applied consistently in decisions of this Court.
The solicitor appearing on behalf of the father points out that the underlying proceedings commenced more than seven years ago, in March 2014. She observes correctly that Johns J determined the mother’s application after a six-day hearing, during which both of the parties gave evidence and were cross-examined, and an Independent Children’s Lawyer called witnesses, including a family report writer and a psychiatrist. Johns J made orders that until further order the three children of the marriage live with their father. The orders also provided for the father to have sole parental responsibility, and there were orders that the mother could have supervised time with the children at a contact service in Western Australia six times per year. There was provision for telephone time also.
It is submitted on behalf of the father that during the course of the hearing, Johns J made a number of adverse findings about the mother, including that there was no evidence to support her contentions that the children had been sexually abused by the father, and that her contentions in this respect were mischievous. Experts gave evidence as to the unacceptable risk the mother posed to the children. It is said on behalf of the father that even before Johns J had pronounced final judgment, the mother had made a further application making a number of allegations concerning the father. The mother had made three applications to the Court, consisting of an application in a case and two contravention applications. The mother issued a further application on 30 December 2015 and a further contravention application on 25 January 2016, as well as a contempt application on 15 February 2016. All of this would seem to be correct.
It is submitted by the father, and I accept, that by March of 2017 the arrangements ordered by Johns J had broken down. Notwithstanding the findings of her Honour, the mother persisted in asserting that the children had been victims of sexual abuse and that their father posed a risk to them.
The matter came on for hearing a second time on 19 April 2017 before Cronin J. After hearing evidence his Honour ordered that the mother have limited time with the children by telephone only, with such telephone time to be supervised by the children’s contact service in Western Australia. It is against this background that the mother has filed her 9 July 2019 application in a case and her 3 October 2018 initiating application.
It is the father’s position that the applications made by the mother are entirely hopeless, that they are not supported by probative evidence, and that none of the material produced by the mother amounts to changed facts and circumstances or fresh evidence. The father points out that the proceedings have been unrelenting for at least six years. He submits also, relevantly, that on 10 December 2018 the father and the mother attended a section 11F conference with the children of the relationship, with the father and the children attending in Western Australia and the mother attending in Melbourne. The conclusion of the 11F counsellor was that the situation was hopeless and there was no reasonable prospect of any face-to-face time between the mother and the children being conducive to the children’s best interests.
It is also submitted on behalf of the father that on 24 February 2020 the matter was listed for a case management hearing. The Court ordered that there be a case conference involving a family consultant and a Registrar of the Court. However that too was unsuccessful. The father contends that between February 2020 and the current listing there have been six other court dates where the matter has been listed for hearing and has been adjourned by the Court on its own motion or on the application of the mother on the basis that she is seeking legal assistance.
It is the father’s position that the only course open to the Court is to dismiss the mother’s application. He says there are numerous reasons for doing so. He points to the ongoing litigation between the parties since 2014, most of which has been initiated by the mother and none of which has been successful from her perspective. He says that this has put him to considerable expense and subjected him to significant stress and anxiety. He says that it goes without saying that this has impacted adversely on the children, and will continue to do so. The father submits that despite being given very many opportunities to produce fresh evidence in support of her applications to reopen the proceedings, the mother has completely failed to do so. He says that there is no reasonable prospect that the mother will be able to produce fresh evidence. He maintains that there is no new evidence to be obtained, and that the statements made by the mother indicate that she has failed to accept the matters set out in the judgment of Johns J, and that to allow the mother’s application would amount to allowing her to review her Honour’s decision long after the time for doing so has passed.
The father also made submissions concerning the property aspect of the mother’s application, but as the parties ultimately agreed consent minutes in relation to this matter it is sufficient to record that orders in accordance with that minute of consent orders will be made.
The father also contends that the Court should make a vexatious proceedings order against the mother requiring her to seek the leave of the Court before instituting further proceedings, whether she is represented by a lawyer or otherwise. The father also seeks a costs against the mother, contending that his costs from the latest round of proceedings amounts to some $38,559.95.
I observe that when the matter came before the Court on 14 December 2020, the mother was not in a position to proceed. She had not filed any proper material, and what she had prepared was significantly limited. On that basis her application was adjourned to 16 February 2021 in order for her to have an opportunity to file proper material. Although an affidavit was subsequently filed, I accept the father’s submission that that affidavit does not advance matters and, significantly, does not provide any probative evidence that there has been a material change of circumstances for the purposes of the rule in Rice & Asplund. As I have indicated, notwithstanding the submissions to the contrary made by counsel for the mother, I accept that it is incumbent upon the mother to satisfy the rule in Rice & Asplund in the circumstances in which she has presently moved the Court.
Reference to the mother’s affidavits of 21 January 2021 and 27 May 2021 reveals the paucity of evidence which is led on the subject of whether there has been a material change. The mother asserts that since 2017 she has had monthly telephone calls, and that the calls have been beneficial. Nothing else material is said on the subject. In the mother’s affidavit of 27 May 2021 she says simply that she has had “great contact” with the children at the contact centre, apart from a few sessions. The mother accepts that she has received no information about the children. Insofar as the mother refers to the affidavit of Ms KK affirmed on 17 August 2018, she points to a letter exhibited to that affidavit addressed by the coordinator of the contact service to a Mr KK. I accept that aspects of that letter are critical of the father’s contact on certain occasions, but I do not consider that that affidavit, and indeed that the conduct referred to in that letter, which is now some years ago, takes matters very much further.
There has been a long history of litigation, both in the Federal Circuit Court of Australia and in this Court, which appears to have commenced in early 2014. As I have said, a contested hearing occurred before Johns J, and orders were made. Notwithstanding her Honour’s findings in relation to the allegation that the children have been subject to sexual abuse at the hands of the father, the mother apparently continues to believe that allegation. In documents provided by the mother to the Court by email on 4 December 2020 the mother asserted that she wished to raise that issue again. There was a similar communication from the mother to that effect in an email dated 14 September 2020.
For relevant purposes I do not accept that the mother has produced any evidence that there is a significant change of circumstances of the kind that would be required to revisit the orders made in 2017 by Cronin J. Indeed, her most recent affidavits are noticeably devoid of evidence of that kind. These children have been subject to litigation for too long. I do not accept, in the face of the evidence on which the mother relies in these applications, that there is any compelling basis to demonstrate a significant change of facts or circumstances. It cannot be accepted that reopening these proceedings would in any way be in the best interests of these children and I will not make orders permitting this to occur.
The same can be said in relation to the issue of child support. As the father points out, there is no application before the court for any child support, and there is no probative evidence that there is any child support payable by the father to the mother in any event. All that is said on the subject of child support by the mother in her application is that “the father pay the mother back child support that is still owning” (application in a case filed 9 July 2019). It is entirely unclear on the evidence what, if any, child support is owing by the father to the mother. I therefore accede to the father’s submission that the mother’s application for the balance outstanding for child support ought be dismissed in its entirety.
The mother has failed to discharge the obligations on her as an applicant. She has failed to produce appropriate evidence in support of her Rice & Asplund application, her child support application and the mutual non-denigration orders that she seeks. On that basis her applications should be dismissed and I will make an order dismissing her applications of 3 October 2018 and 9 July 2019.
Having also heard the parties in relation to the father’s application for a vexatious proceedings order, I consider it appropriate to make an order pursuant to s102QB of the Act. I do so on the basis of the continuing applications that the mother has made effectively to unravel the parenting orders that had been previously made by the Court. I consider that the mother’s conduct in relation to the constant re-agitation of parenting issues has risen to the level of vexatious for the purposes of s102QB of the Act: see the discussion of the relevant principles in Cardus & Lavrick [2020] FamCA 579, [49]-[57]. I am satisfied that there have been a sufficient number of applications made by the mother in relation to the three children of the marriage – leaving aside the property applications – as to make it appropriate for there to be an order pursuant to section 102QB(2) of the Act.
Insofar as the appropriate order for costs of the property aspect of the mother’s application is concerned, it seems to me that there has been conduct on both sides which has been problematic in relation to this issue, and in those circumstances I am not persuaded that the costs position in section 117(1) of the Act should be displaced. However, insofar as the mother’s persistent applications for further time with the children is concerned, I am satisfied, pursuant to section 117(2) of the Act, that there are circumstances that would justify the court making an order for costs in favour of the father.
In this regard, I pay particular attention to s117(2A)(c) of the Act, that is to say, the conduct of the parties, and in particular the conduct of the mother in bringing a number of these applications in the absence of adequate affidavit material, causing them to have to be adjourned, and also the fact that she has been wholly unsuccessful in relation to that aspect of her applications (s117(2A)(e)). I will make an order that the mother pay the father’s costs, on a party-party basis, of and incidental to her applications for increased time with the children. And if it is not implicit in what I have said, I do not consider that there is an appropriate evidential basis to make any order for costs in a fixed sum – that is to say, the sum of $38,559.95, which in his submissions the father contends that he has incurred. The orders will be as set out at the commencement of these reasons.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 7 June 2021
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