Bondai and Bretton

[2013] FamCA 24

FAMILY COURT OF AUSTRALIA

BONDAI & BRETTON [2013] FamCA 24

FAMILY LAW – CHILDREN –  mother’s application in a case for summary dismissal or permanent stay of father’s parenting orders application – where mother’s previous application in a case for dismissal on “Rice v Asplund” grounds was dismissed - where the mother has filed an appeal against that decision – where the appeal hearing is pending – where the mother argues the father’s parenting orders application has no realistic prospects of success - where the mother seeks, in the alternative to dismissal of the father’s parenting orders application, $200,000 security for costs - where it is determined the father’s application is not doomed to fail and mother’s application for dismissal or permanent stay of proceedings is dismissed – where security for costs application is dismissed – where application for stay of previous orders in respect of preparing substantive proceedings for trial pending the determination of the appeal is dismissed

Family Law Act 1975 (Cth) Division 12A, s 117(2)
Family Law Rules 2004 r 10.12, r 19.05(2)

Aldred (1986) FLC 91-753

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685.

Bigg and Suzy (1998) FLC 92-799

In the Marriage of Clemett (1981) 50 FLR 248
Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681

Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Luadaka & Luadaka (1998) FLC 92-830
Rice and Asplund (1979) FLC 90-725

Sheldon v Weir (Stay Application) [2011] FamCAFC 5

Spellson (1989) FLC 92-046

The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230
Trahn v Long (No 2) [ 2008] FamCAFC 194

APPLICANT: Ms Bretton

RESPONDENT: Mr Bondai

FILE NUMBER: BRC 13855 of 2007

DATE DELIVERED: 1 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 19 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston

SOLICITOR FOR THE APPLICANT: Lynn & Rowland Lawyers

COUNSEL FOR THE RESPONDENT: Mr A Smith

SOLICITOR FOR THE RESPONDENT: Hogan Stanton Lawyers

INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley

Dooley Solicitors

Orders

1. That the mother’s Application in a Case filed 31 August 2012 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC13855/2007

Ms Bretton

Applicant

And

Mr Bondai

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 8 June 2012, I dismissed the mother’s application in these parenting proceedings for an order dismissing the father’s substantive application for parenting orders. The mother had unsuccessfully argued that the principles in Rice and Asplund (1979) FLC 90-725 applied in this case. Included in the evidence I had considered in determining that application was a report by psychiatrist, Dr W, dated 29 November 2011. He had seen the mother and the father and the two children, pursuant to final parenting orders made by consent by O’Reilly J on 8 October 2010. That was the last day of a five day trial in the matter. Consideration of Dr W’s report in the light of those orders and her Honour’s reasons for those orders is what led me to dismiss the mother’s application.

2. The mother filed an appeal against my orders and that appeal is pending, to be heard sometime in the first half of this year.

3. Even though the mother has filed that appeal, she filed another application in the proceedings on 31 August, 2012 in which she again sought orders from the Court for the father’s substantive proceedings to be dismissed or permanently stayed. In that application, the mother also sought alternative orders, in the event that the father’s proceedings were not dismissed or permanently stayed, that the father provides $200,000 in security for the mother’s costs of the proceedings. She also sought an order that my orders of 8 June, 2012 be stayed pending the hearing and determination of the mother’s appeal.

A THRESHOLD ISSUE

1. In written submissions, for the mother, filed in advance of the hearing of this latest application, it was argued that the father’s case “has no realistic prospects of success” and ought be permanently stayed or otherwise dismissed. This was said to be clearly demonstrated by the history of the case.

2. In response, at the hearing, it was submitted for the father that I had already determined in my reasons for judgment delivered 8 June 2012, that I was satisfied that “there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing” and that I could, therefore, not now find that the father’s case has no realistic prospects of success. Counsel for the father raised that as a threshold point, arguing that it should, right at the outset, determine the mother’s application to dismiss or permanently stay the father’s substantive application.

3. I understood the position then taken by counsel for the mother to be that he accepted that point and that he abandoned the application for dismissal or permanent stay. He indicated to the Court that he would, in the circumstances, focus his submissions on the mother’s application for security for costs. That is what he then did.

4. However, after having heard the submissions of counsel for the mother and counsel for the father, the ICL, Mr Dooley, then told the Court that he considered the mother’s application to be premature as some questions in writing, prepared by the parties, had been sent to Dr W by the ICL on 6 September 2012 and they had not, to that point in time, been answered.

5. It was then agreed between all the parties and the Court that if Dr W’s answers came in soon after the hearing that they could be provided to the Court and any further submissions each party wished to make as a consequence would be received by the Court.

6. On 23 November 2012, a letter signed by the ICL and the solicitors for the mother and the father enclosing the questions asked of Dr W and his written answers dated 18 November 2012 was received by the Court. I have made that Exhibit 1 in the application under consideration. The parties were all advised that they could provide further written submissions by 14 December 2012 if they wished. Submissions were received from counsel for the mother and counsel for the father.

7. Although it was my understanding that counsel for the mother had, at the oral hearing of the matter on 19 November, 2012, abandoned the application for summary dismissal and/or permanent stay of the father’s fresh substantive application for parenting orders, in his written submissions filed 7 December 2012 he referred to Dr W’s answers to the questions and again submitted that the father’s proceedings be summarily dismissed. Alternatively, he submitted that the doctor’s answers provide support for the mother’s application that the father provide security for the mother’s costs of the proceedings.

8. So, although I consider that the mother’s counsel originally abandoned the mother’s application for summary dismissal, his written submissions clearly seek to re-agitate that part of the mother’s application.

9. Nevertheless, having now had the benefit of the questions that the parties asked of Dr W and his answers, in addition to his original report, I do not consider that I can find that the father’s substantive application for parenting orders cannot succeed.[1] As Kirby J pointed out in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5, the guiding principle on an application for summary dismissal is doing what is just. If it is clear that the father’s proceedings are doomed to fail then they should be dismissed. As Kirby J said, dismissal of such a case saves the respondent from being further troubled, saves the applicant from further costs and disappointment and relieves the Court of the burden of wasted time which could be used for other cases.

   [1]It is well settled law that this Court has the necessary inherent power (as well as power sourced in Rule 10.12 of the Family Law Rules 2004) to dismiss or permanently stay an application which cannot succeed. See Aldred (1986) FLC 91-753 per Nygh J; Spellson (1989) FLC 92-046 (Full Court); Bigg and Suzy(1998) FLC 92-799.

10. Having regard to the nature of the final parenting orders sought to be varied by the father’s application, and the untested report and conclusions of Dr W, as well as his answers to the questions he was more recently asked by the parties, particularly his answers to questions 8-11, I do not accept that it is clear that the father’s application to vary the substantive parenting orders made by consent by O’Reilly J on 8 October 2010 is “doomed to fail”. The evidence that is now before me does not persuade me that I was wrong when I decided, on 8 June 2012, that “there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing”.  In any event, that judgment on what was argued as a “Rice v Asplund” application has been appealed. This is a fresh application by the mother for summary dismissal of the father’s application for parenting orders, which is to be decided, in my view, on slightly different principles, albeit with the best interests of the children remaining as the paramount consideration.

11. Although Dr W more recently expressed some difficulty in foreseeing how the “flooding exposure” that he spoke of in his first report might be practically achieved, he did not reject the proposed course completely. That, combined with his answers to questions 10 and 11, give me cause to reject the argument that the father’s fresh application is “doomed to fail”. Accordingly, I will not dismiss or permanently stay the father’s substantive application. 

WHAT OF THE APPLICATION FOR SECURITY FOR COSTS?

1. In Luadaka & Luadaka (1998) FLC 92-830 the Full Court observed that security for costs applications are to be dealt with pursuant to s 117 of the Act. The general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the Court is “of opinion that there are circumstances that justify it in doing so” subject to s 117(2A), (4), (4A) and (5) and the applicable Rules of Court, the Court may make an order for security for costs as the Court considers just.[2]

   [2]S 117(2)

2. Clearly, the decision to order security for costs is discretionary and matters that must be considered in exercising the discretion are set out in s 117(2A). In addition, matters that may be considered are set out in Rule 19.05(2) of the Family Law Rules 2004 and they reflect several matters that the Full Court listed in Luadaka as relevant considerations. There is some overlap between those matters listed in Rule 19.05(2) and those matters listed in s 117(2A).

3. After considering those matters, I am not persuaded that the circumstances justify an order for security for costs being made in this case.

4. Neither the mother nor the father is financially in a very strong position. The mother is a qualified professional and does some work as a professional but for little, if any, income. She is effectively supported financially at the moment through the income generated by her husband’s business. He paid for the cost of her legal representation in the proceedings that culminated in the October 2010 consent order. Those costs were said to be in excess of $280,000. The mother and her husband have, the mother says, had to sell their home as a consequence and now live in rental accommodation. Whilst I note that on each of the two applications the mother has brought in the last year she has been represented by solicitor and very experienced counsel, I do accept that she will probably have great difficulty being able to pay for such legal representation on an ongoing basis.  

5. On the other hand, the Court was told the father is in receipt of legal aid in this matter. He is self-employed and deposes to earning approximately $722 net per week but having weekly expenses that exceed that. His expenses include rent for his accommodation. I accept that he does not have the capacity to pay for his own legal representation let alone provide security for costs in the amount sought by the mother.

6. I find, at this stage in the proceedings, nothing about the father’s conduct that points to a lack of genuineness or bona fides in respect of his application. I accept that he desperately wishes to have a meaningful relationship with his two sons and that the proceedings are being maintained by him with a view to achieving that. The mother’s submissions that the father’s apparent focus on alleged alienation of the children from him somehow detracts from the genuineness of his substantive application for variation of the orders is, with respect, lost on me. Particularly so, when I read Dr W saying:

   I am unaware of any legitimate justification for [the child’s] fear/hostility of his father. There is no evidence that [the father] has acted in a way that would justify [the child’s] severe fear of having contact with his father. [The child] has rejected the possibility of having a relationship with his father without any justification that I am aware of.

7. I find that the proceedings have been brought by the father because the orders that the Court made, with the consent of the parties, have not achieved what the Court and the parties clearly hoped them to achieve, namely a resumption of meaningful relationships between the children and their father. At this point in time, I cannot actually determine responsibility for that. Neither party has argued that the other has actually failed to comply with those orders, even though the father clearly seeks to make out a case that the mother is somehow responsible for the resumption of the relationships not being achieved.

8. I am satisfied, having regard to the father’s financial circumstances, that an order for him to provide $200,000 security for the mother’s costs of the further proceedings would be extremely oppressive to him. There would be a real prospect, I accept, that such an order would seriously stifle his right to proceed with the substantive application. He would probably not be able to continue.

9. Although, if the mother continues to contest the proceedings and to retain legal representation throughout, the cost of doing so might be tens of thousands of dollars, that is, of course, a matter of her choosing.

10. Having decided that I am not satisfied that the father’s substantive proceedings for a change to the existing parenting orders is “doomed to fail” and having previously been satisfied that there is a likelihood of change to those orders, I do not consider that the risk of the father not being successful is a very weighty matter in the determination of the exercise of my discretion.

11. I will not be making an order that the father provide security for the mother’s costs in these proceedings.

SHOULD THE PROCEEDINGS BE STAYED PENDING THE DETERMINATION OF THE APPEAL?

1. Although I intend to dismiss the mother’s application for summary dismissal of the father’s proceedings and her alternative application for security for her costs to be provided by the father, there being an extant appeal against my earlier refusal to dismiss the father’s application on “Rice v Asplund” grounds, I must still determine the mother’s application for me to stay my orders of 8 June, 2012 pending the hearing and determination of that appeal.

2. Although neither counsel for the mother nor counsel for the father addressed any oral or written submissions to this issue, the principles by which I am to determine this part of the mother’s application are well settled.[3]

   [3]See The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; Trahn v Long (No 2)[ 2008] FamCAFC 194; Sheldon v Weir (Stay Application) [2011] FamCAFC 5

3. The father obtained a judgment from this Court in June 2012 and is entitled to the benefit of the judgment, being entitled to presume the judgment is correct. Merely filing an appeal against that judgment is insufficient to ground a stay and some preliminary assessment of whether the appellant has an arguable case on appeal is generally required. As to this last point, I am not in any position to consider the mother’s prospects on appeal as I have not even seen the Notice of Appeal and the grounds it includes. That was not put into evidence before me.

4. Additionally, the Court must consider the risk that the appeal would be rendered nugatory if a stay is not granted. In this regard, the operative order that the mother seeks to stay is:

   That the matter is adjourned to the Registrar for the making of all such directions as might be necessary for the further progress of the matter, including, if considered appropriate, directions for the final hearing of the matter.

5. Again, although I was told at the hearing of this application that the matter had been before a Registrar since I had made that order and that the Registrar had been told that this application was going to be brought, there was no evidence put before me and relied upon as to the stage the matter has reached in its progress towards trial and no submissions made going to this point.  I am not aware of the matter having been listed for trial and I know that the trial calendar is currently listed out to the beginning of August this year. As I have indicated already, there is an expectation that the appeal should be heard sometime in the first half of this year. Accordingly, I do not expect a refusal to stay my orders of 8 June, 2012 will render the appeal nugatory. It is most unlikely that a trial will now be listed to take place before the hearing and determination of the mother’s appeal.

6. In all the circumstances, I am not persuaded to stay my orders of 8 June, 2012 pending the hearing and determination of the mother’s appeal against those orders.

7. Accordingly, the mother’s application in a case filed 31 August, 2012 is dismissed.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 1 February 2013.

Associate: 

Date:  1 February 2013