Bretton & Bondai - [2013] FamCAFC 168

FAMILY COURT OF AUSTRALIA

BRETTON & BONDAI

[2013] FamCAFC 168

FAMILY LAW – APPEAL – CHILDREN – SUMMARY DISMISSAL – Where the appellant mother appeals against an order dismissing her application for summary dismissal of an application by the respondent father to re-open parenting proceedings – Where the respondent father sought to re-open parenting proceedings because of “changed circumstances” – Where the trial judge found that there were changed circumstances in accordance with the principles in Rice & Asplund – Whether the failure of consent orders providing for the “re-introduction” of the children to the father amounts to changed circumstances – Where the majority of the Full Court held that it was open to the trial judge to find that there can be changed circumstances when things envisaged in the court’s orders do not occur and that such circumstances existed in this case – Appeal dismissed – Order for costs in favour of the respondent father.

FAMILY LAW – APPEAL – CHILDREN – SUMMARY DISMISSAL – Where appellant mother also appeals against the dismissal of a subsequent application for summary dismissal – Where no error found on the part of the trial judge – Order for costs in favour of the respondent father.

Civil Procedure Act 2010 (Vic)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bigg & Suzi (1998) FLC 92-799
DL & W (2012) FLC 93-497
Fennessy & Gregorian (2009) FLC 93-399
House v The King (1936) 55 CLR 499
Langford & Coleman (1993) FLC 92-346
Lindon v The Commonwealth(No 2) (1996) 70 ALJR 541
Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158
Marsden v Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725
Spencer v The Commonwealth (2010) 241 CLR 118

APPELLANT:

Ms Bretton

RESPONDENT:

Mr Bondai

INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

FILE NUMBER:

BRC 13855 of 2007

APPEAL NUMBER:

NA 59 of 2012
NA 10 of 2013

DATE DELIVERED:	21 October 2013
PLACE DELIVERED:	Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, May & Strickland JJ

HEARING DATE:

25 June 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

8 June 2012
1 February 2013

LOWER COURT MNC:

[2012] FamCA 429
[2013] FamCA 24

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Baston

SOLICITOR FOR THE APPELLANT:

Lynn & Rowland Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ehlers

SOLICITOR FOR THE RESPONDENT:

Richard Gray & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance by solicitor for the Independent Children’s Lawyer

Orders

The appeals be dismissed.
The mother pay the father’s costs of and incidental to the appeals with such costs to be assessed in default of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bretton & Bondai 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 BRISBANE

Appeal Number: NA 59 of 2012, NA 10 of 2013
File Number: BRC 13855 of 2007

Ms Bretton

Appellant

And

Mr Bondai

First Respondent

And

Dooley Solicitors
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Finn & Strickland JJ

Introduction and background

These are appeals against orders made by Forrest J on 8 June 2012 and

1 February 2013. The essential effect of all the orders appealed was to permit the father to pursue an application filed by him on 16 December 2011 in which he sought orders that his two sons (born respectively in March 2000 and April 2001) should move from living with their mother to living with him and that there should be no contact between the boys and their mother for at least six months after that change of residence.
Both appeals are brought by the mother. They are opposed by the father, who is supported in his opposition to the appeals by the independent children’s lawyer, who filed a brief written submission stating that he adopted and relied on the father’s outline of argument, but did not appear at the hearing of the appeals.
In his reasons for judgment in relation to his orders of 8 June 2012, Forrest J found that the father and the mother separated in late 2006 or early 2007; that in May 2008 the father commenced proceedings under the Family Law Act 1975 (Cth) (“the Act”) in relation to the parenting arrangements for the two boys; and that there had been litigation about those arrangements ever since (Reasons [5] and [6]).
There was a five day trial before O’Reilly J on 4 to 8 October 2010 at which both parents were represented, with the children being separately represented. A great deal of expert evidence was called at the trial before the matter settled on the final day, with O’Reilly J only having to determine one matter (being “the changeover point” for the boys’ time with the father).
In his reasons for judgment of 8 June 2012, Forrest J summarised in the following way the orders and notation which were made by consent by O’Reilly J:
9.… The orders her Honour made included the discharge of all previous parenting orders and the conferral of equal shared parental responsibility for the two children on the parents. Relevantly, the orders went on to include the following paragraphs:
7.That the Mother and the Father and children attend upon [Dr W] for counselling at such time and frequency as directed by [Dr W] through the Independent Children’s Lawyer with the objective of assisting both parties in their conflict and to facilitate and monitor the reintroduction of the Father to the children.
….
18.That upon a satisfactory reintroduction of the Father into the children’s lives, under the guidance of [Dr W], the children spend time with the Father at all times as agreed between the parties but failing agreement as follows:-
Then follow what can be appropriately described as standard provisions for alternate weekends, half of school holidays and special days, in addition to regular and frequent telephone communication.
10.The orders continue:-
19.That upon the children’s time commencing with the Father in accordance with order 18 above:-
Then follow more standard provisions for the sharing of information between the parents about the children.
11.The orders continue further:-
20.That the Independent Children’s Representative not be discharged until 12 months from the date of this order.
21.That [Dr S] continue to be the boys’ therapeutic practitioner and [Dr S] is authorised to discuss the children’s matters with [Dr W].
22.That in the event the children travel overseas with the Father, the Mother shall make the children’s passports available. Upon the Father’s return the children’s passports shall be returned to the Mother at the next changeover.
23.Subject to order 19 (a), should the children wish to participate in religious activities during the time they are with the Father, the Father will facilitate same including the attendance by the children at school based Easter celebration activities.
NOTATION: The parents acknowledge that the intention of these orders is to put in place a child focused means by which the children might be reintroduced to the Father and spend substantial and significant time with him.
O’Reilly J gave brief reasons for judgment in relation to those consent orders. Parts of her reasons were included in Forrest J’s reasons for judgment of 8 June 2012. While, in our view, these appeals could well, indeed perhaps should, be determined without regard to O’Reilly J’s reasons (Langford & Coleman (1993) FLC 92-346), we will now set out those parts of her reasons included in Forrest J’s reasons so that the latter reasons can be fully understood:
2.Part of the agreement is that the children live with the mother, and after being reintroduced to the father satisfactorily under the guidance of [Dr W] , psychiatrist, they spend time with the father at all times as agreed between the parties, but failing agreement each alternate weekend ….
…
13. …
Now, I will also place or the record an observation I made about my reason for making final orders, which is now by consent, … and I will now place on the record, in case things go off track in future, that I’m mindful of the rule in Rice & Asplund (1979) FLC 90-725, but since then there have been the decisions of Miller & Harrington (2008) FLC 98-283 at 72, and Marsden & Winch (2009) FamCAFC 152 at 41-47 first sentence.
As the latter two authorities show the rule is now applied taking into account best interest considerations, and the Court also must apply the provisions of Division 12A of the Act. Now, as the trial judge in this matter I can state that the final consent orders which have been made, and the one which I have determined, are all predicated upon the notation to the orders that the parents acknowledge that the intention of the orders is to put in place a child focused means by which the children might be reintroduced to the father and spend substantial and significant time with him.
Order 18 is clear in its terms that upon – not if – but upon – a satisfactory reintroduction of the father into the children’s lives under the guidance of [Dr W] the children spend time with the father at all times as agreed between the parties, but failing agreement as set out. There is nothing in the orders that is predicated upon a presumption that if the proposed reintroduction fails then that’s the end of the matter and the boys and the father will continue to have no relationship. That’s not the way it works.
In my mind there is no doubt whatsoever that if a satisfactory reintroduction through [Dr W] is not achieved that in itself will be a significant and outstanding change of circumstances, not in the present relationship between the parties, but the predication of the success of these orders. If, therefore, they don’t work, and I sincerely hope that they do in the best interests of the children, if they don’t work then there will not be a barrier to the father instituting fresh proceedings for the children to be removed from the mother and to live with him.
(Reasons for judgment of O’Reilly J delivered on 8 October 2010)
It will be seen from Orders 7 and 17 of, and the notation to, the consent orders made by O’Reilly J that both parties apparently considered that there was a need for the children to be “re-introduced” to the father with the assistance of a Dr W (or at least there should be an attempt at such a

re-introduction).
Forrest J recorded Dr W’s attempts, which were ultimately unsuccessful, to re-introduce the boys to their father in the following paragraphs of his reasons of 8 June 2012:
13.The father thereafter attended two appointments with [Dr W] in November 2010. According to the report of [Dr W] dated 29 November 2011 provided to the ICL by the doctor and put into evidence before me by the father, the mother attended two appointments with him as well. [Dr W] also reported that the child, [B], attended upon him twice and the child, [E], attended upon him once.
14.The father deposes that [Dr W] told him on 16 June 2011 that he was unable to effect reunification of the children with the father.
15.Relevantly, under the heading “Conclusions”, in his report,
[Dr W] says:-
Both parents describe the older child, [B], appearing to have more difficulty separating from his mother to spend time with his father. He would attempt to ring his mother frequently as a form of self medication for his anxiety and she would allegedly take him from his anxiety by removing him from his father’s care. Unfortunately, these actions would have only served to reinforce his anxiety about being with his father. This anxiety has been blamed on his father’s treatment of him however there is little evidence to support this contention. The only significant physical conflict either boy could remember was when [B] attacked his father with supporting (sic – probably “sporting”) equipment when he was trying to prevent him from ringing his mother. I would assume that [B] was having a Panic attack at the time.
It is more acceptable for [B] to “blame” his anxiety on his father and it is certainly congruent with his mother’s beliefs about the father. Avoiding his father means that he does not have to confront his anxiety but it does not fix the problem. The longer the period of separation the more entrenched and sever the anxiety becomes until [B] is having anxiety at the mere mention of his father. This anxiety is severe, clinically significant, out of keeping with the threat his father poses and has lead to avoidance behaviour. If [B] reacted in this fashion to any separation from his mother than [sic] he would be diagnosed with a Separation Anxiety Disorder but he and his mother report that he is able to separate from her without problems to go to friends’ houses or school camps. As such, [B] would meet the DSM 4 diagnostic criteria for a Specific Phobia Disorder centred on his father in the midst of an acrimonious custody battle. It would appear that [B]’s mother has either consciously or inadvertently reinforced his anxiety by assisting him in avoiding his father.
In the current circumstances, it is too potentially dangerous to attempt to treat [B]’s anxiety by graduated exposure to the feared object in the controlled environment of my rooms. As outlined above [B] had a Panic Attack and ran away from my rooms with no thought of his own safety. Any treatment would require the full support of both parents and either graduated exposure in a safe environment such as a psychiatric ward or the Family Court offices or a “flooding” exposure whereby [B] is removed from his mother’s care and placed with his father for an extended period of time without contact with his mother. This would only work if [B] was unable to run away and reconnect with his mother. [E] does not have a significant anxiety disorder about his father and has just mirrored his older brother’s behaviour. If [B] was able to deal with his anxiety and reconcile with his father [E] would most likely follow.
It appears that it was shortly after receiving a copy of Dr W’s report dated 29 November 2011 that on 16 December 2011 the father filed the application (mentioned in the first paragraph of these reasons) seeking orders that the boys should live with him.
On 7 February 2012 the mother filed a response to the father’s application in which she sought by way of final orders that the children live with her and that she have sole parental responsibility for them. No orders were sought by her for the children to spend any time with the father.
Relevantly for present purposes, the mother sought by way of interim or procedural order that the father’s application filed on 16 December 2011

“be summarily dismissed”.

The first appeal (NA 59 of 2012)

The mother’s application for “summary dismissal” was heard by Forrest J on 29 May 2012, and then dismissed by him for the reasons which he gave on

8 June 2012. On that day his Honour also made an order for the necessary directions to be made by a Registrar for a final hearing of the father’s application that the children live with him (although his Honour dismissed an application by the father for an expedited final hearing), and he also ordered that the children be independently represented.
All of his Honour’s orders made on 8 June 2012 are the subject of the first appeal with which these reasons are concerned.

Forrest J’s reasons for judgment of 8 June 2012

At [4] in his reasons for judgment of 8 June 2012, Forrest J observed that the mother’s case for summary dismissal was “perhaps most easily described … as one in which she seeks to invoke the principles first discussed in Rice and Asplund (1979) FLC 90-725.” Later (at [23]), his Honour further observed that he was satisfied that the parties understood that he was being “asked to determine the matter” (presumably the summary dismissal application) as

“a preliminary question”.
After setting out the historical background, including the orders and observations of O’Reilly J and the opinions of Dr W (which have earlier been set out), Forrest J recorded (at [16] and [17]) that it was the father’s case that Dr W’s opinions, as well as some affidavit material from the father himself, would support a finding that the mother is alienating the boys from the father and that they need to live with him to give them a chance of having a relationship with both parties. That affidavit material from the father will be later set out.
His Honour recorded (at [18] and [19]) that the mother’s case, as put through her senior counsel, was that notwithstanding the observations made by O’Reilly J, “the authorities demonstrate a requirement for a change of circumstances sufficient to justify the alteration of a previous order and that there is no such change of circumstances here in this case.”
Having made some reference to the principles contained in Rice and Asplund, and to various subsequent decisions of the Full Court which have sought to explain the application of that early decision, his Honour provided the following brief but, in our view, accurate summary of the principles which emerge from those decisions (notably from Marsden v Winch (2009) 42

Fam LR 1), being that:
22.… the requirement to consider the past circumstances as well as the question of whether there is a likelihood of orders being varied in a significant way as a result of a new hearing clearly includes the need … to be satisfied that there is some changed circumstance or some new factor arising or some factor which was not disclosed at the previous hearing that would, likely, support a variation of those orders in a way that would benefit the children more than any disruption caused by re-litigation.
Then, in applying these principles to the present case, his Honour turned first to the orders made by consent by O’Reilly J, saying:
26.Her Honour’s orders, it is clear, were predicated on an expectation that the process of therapeutic reintroduction of the father into the lives of the boys would be successful. They did not contemplate failure and having been made with the consent of the parties after consideration of all of the evidence in the matter, it is, in my view, reasonable to accept that all the parties, as well as O’Reilly J, expected such a reintroduction to work. In any event, on their face, the orders are clear in their meaning. Counselling was to take place with the psychiatrist and when the children were satisfactorily reintroduced to the father they were to begin spending substantial and significant time with him.
His Honour then (at [27]) posed for himself, and answered in the affirmative, the question as to “whether when things do not actually occur as envisaged in the Court’s orders that can be a change of circumstances within the bounds of the applicable principles.” However, his Honour then acknowledged that there is a further question to be answered, and that is, whether the change of circumstances “having regard to the evidence in each particular case, is enough to allow the substantive application to proceed …”
His Honour answered this further question in the following way:
28.… I am also satisfied, on the evidence currently before me, that there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing. The father seeks orders that would result in a dramatic change to the parenting arrangements applicable to the children. That, of course, will only happen if it is found to be in the best interests of the children. That is unlikely to be found to be the case if the father does not make out his case of alleged alienation by the mother.
His Honour’s reasons for his ultimate conclusion that the father’s application should be permitted to proceed were then expressed as follows:
29.The evidence, albeit untested, that persuades me, ultimately, to dismiss the mother’s application is the opinion evidence of the psychiatrist, [Dr W], which I have extracted from the conclusions in his report and quoted earlier in these reasons, as well as the evidence of the father that I have referred to in paragraph 17 of these reasons. In particular, [Dr W’s] opinion that it appears the mother has either consciously or inadvertently reinforced the eldest child’s anxiety by assisting him in avoiding his father coupled with the evidence of the father is evidence satisfying me, at this point in time, that the existing orders could be varied in a significant way as a result of a new hearing. The treatment options set out by [Dr W] clearly reflect ways in which the orders could, ultimately, be significantly varied.
30.I am mindful that the ongoing litigation itself and any continued conflict between the parents are potentially detrimental to these two children, but the nature of the significant change that might be the end result of further proceedings, namely orders that facilitate the children being able to have meaningful relationships with both parents rather than just one, in my view, on balance, justifies permitting the father’s substantive application to proceed.

It will be seen that in [29] of his reasons, his Honour referred to evidence from the father which his Honour had earlier referred to in [17] of his reasons; that earlier paragraph was as follows:
17.He also includes some other evidence in his affidavit to support his contention that the mother’s actions are alienating the children from him. He contends that the mother, whilst expressing commitment to re-establishment of the children’s relationship with their father, does not act consistently with actually having such a commitment. He includes in his affidavit the assertion that the mother only provided him with copies of the children’s December 2010 school reports in mid-January 2011 after he requested them from her, although the existing orders actually oblige her to provide them to him immediately upon receipt of same. Although the mother filed a second affidavit on 28 May 2012 in which she responded to some of the father’s evidence, she did not respond to these assertions.

The grounds of appeal against the orders of 8 June 2012

Although the appeal against the orders of 8 June 2012 is stated to be against all orders made on that day, the grounds of appeal are clearly directed only to Forrest J’s order dismissing the mother’s application for the summary dismissal (based on “Rice and Asplund” principles) of the father’s application for orders that the children be moved to live with him, and are as follows:
1.In making the order that he did, the trial judge failed to have proper regard, as he was obliged to do by section s 69ZN(3) [sic] of the Family Law Act, the needs of the children of the marriage and the impact that the conduct of the proceedings may have on them in determining the conduct of the proceedings.
2.In making the order that he did, the trial judge failed to have proper regard, as he was obliged to do by section s 69ZN(5) [sic] of the Family Law Act, the requirement to ensure that the children of the marriage were protected from abuse.
3.The trial judge was wrong in finding that there had been a change in circumstances.
4.The trial judge ought to have found that the father had not established a basis upon which it was likely that the orders of 8 October 2010 be discharged, varied or set aside.
5.The trial judge ought to have found that the report of [Dr W] did not support a finding of changed circumstances.
6.The trial judge ought to have dismissed the father’s application to discharge the consent orders of 8 October 2010.
Neither the written nor oral submissions made in support of these grounds addressed the grounds individually. Rather, those submissions focused on the expert evidence which had been led in the trial before O’Reilly J. The purpose of this focus appears to have been to support the submissions made at [5.1] of the mother’s written submissions:
5.1A proper analysis of the factual and positional context surrounding the making the [sic] 8 October 2010 (Amended Order 21 December 2012) consent orders does not support the contention that the parties had any basis to believe that [Dr W] would be able to re-introduce the boys to the father. Any other position could only be described as speculative, ambitious or aspirational.
It was then submitted, in effect, that in reaching his decision on 8 June 2012 Forrest J had failed to understand this background to the making of the consent orders.
We can only say that we consider these submissions to be of little real assistance given that, as was explained by Nygh J (with whom the other members of the Full Court agreed) in Langford (supra at 79, 671) “an order made by consent must be … read and interpreted quite independently of what the parties subjectively might have intended thereby. It must be read as standing on its own feet, as it were.”
In the absence of very much assistance from the mother’s submissions, we turn to consider the actual grounds of appeal themselves.
Ground 6 is no more than a statement of the order which the mother contends Forrest J should have made. It does not particularise any error by his Honour, and thus does not need to be further considered.
Somewhat similarly, Grounds 4 and 5 are little more than statements of findings, which, it is asserted, Forrest J should have made; they do not assert any particular error on his Honour’s part. Ground 3 does assert error, being in the finding that there had been a change of circumstances, but the asserted error is not further explained.
As already mentioned, the written and oral submissions of counsel for the mother focused principally on the expert evidence which had been before O’Reilly J. However, that evidence was not read by Forrest J as his Honour recorded at [24] of his reasons:
24.There was some discussion about whether or not affidavit evidence of a number of experts that was considered by O’Reilly J at the five day trial of the competing applications in October 2010 should be read and considered by me, and Senior Counsel for the mother actually made some reference to some of that evidence in his written submissions. After hearing submissions from both counsel on the point, I determined not to read all of that evidence in the circumstances of the hearing of the application before me. That course, I understood, was accepted by the parties, through their legal representatives, at the time.
No complaint was made before us regarding his Honour’s determination not to read the earlier expert evidence, and thus it is difficult to see what reliance can be placed on such evidence in this appeal. Perhaps more significantly, however, because the trial in which this evidence was led settled, no findings have been made about such evidence, and it would not be for this court to make any such findings in the context of these appeals.
Returning then to the challenges contained in Grounds 3 and 5 to Forrest J’s finding that there had been a change of circumstances, we do not consider that his Honour was in error in his conclusion at [27] of his reasons, being that there can be a change of circumstances “when things do not actually occur as envisaged in the Court’s orders”, or in his finding at [28] that there had been such a change of circumstances in this case.
However, as his Honour recognised at [27] and [28], it was also necessary for him to be satisfied on the evidence before him “that there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing”, and this is the matter to which we understand Ground 4 to be directed.
We have earlier set out [29] and [30] of his Honour’s reasons where he satisfied himself “that the existing orders could be varied in a significant way as a result of a new hearing”. While another judge might have reached another conclusion on the evidence before his Honour, it cannot be asserted, in our opinion, that his Honour was “plainly wrong” which this court would have to conclude that he was, before we would be justified in interfering with his decision (House v The King (1936) 55 CLR 499), and indeed that was the strong submission of counsel for the father.
Grounds 1 and 2 assert error on his Honour’s part on account of his alleged failure to have “proper regard” to the matters in two of the sub-sections of

s 69ZN of the Act. That section is headed “principles for conducting child-related proceedings” and it provides:
Application of the principles
(1)      The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)       Regard is to be had to the principles in interpreting this Division.
Principle 1
(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.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)      the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
(emphasis added)
We have some doubts as to whether a failure to have regard to any of the principles in s 69ZN could constitute a competent ground of appeal given the concluding sentence in s 69ZN(1) (which we emphasised when setting out the section above), and we understood counsel for the father to make a submission to similar effect both in his oral and written submissions.
However, given that this issue was not further explored before us, we say no more about the effect of the provisions of s 69ZN, particularly the words which we have emphasised in s 69ZN(1). But whatever the effect of those words, we are satisfied that when regard is had to his Honour’s observations in [30] of his reasons for judgment (earlier set out), he can be said to have paid proper regard to the principles in ss 69ZN(3) and (5).
We are thus satisfied that none of the grounds of appeal have substance, and thus the first appeal should be dismissed.

The second appeal (NA 10 of 2013)

Having filed a notice of appeal on 2 July 2012 against the orders made by Forrest J on 8 June 2012 , the mother then filed an application in a case on

31 August 2012 in which she sought orders to the effect that:
·   an amended application filed by the father on 16 August 2012 (which presumably amended his original application for parenting orders filed on 16 December 2011) be dismissed or permanently stayed;
·   in the alternative, that the father provide security in the sum of $200,000 for the mother’s costs of and incidental to his amended application filed on 16 August 2012;
·   the orders of 8 June 2012 be stayed pending the determination of the appeal against those orders; and
·   the father pay the mother’s costs of and incidental to his amended application filed 16 August 2012.
On 15 March 2012, the father filed a response to the mother’s application filed on 31 August 2012 seeking that that application be dismissed.
The mother’s application was heard by Forrest J on 19 November 2012 when the independent children’s lawyer appeared as well as counsel for both parties.
Early in the hearing, counsel for the mother said that he was “not running” the summary dismissal or permanent stay application (contained in the application filed on 31 August 2012), but only the security for costs application (Transcript, 19 November 2012, p 3, line 45 to p 4, line 4).
Towards the end of the hearing, the independent children’s lawyer informed his Honour that with the agreement of all parties, further questions had been sent to Dr W on 6 September 2012 and that his answers were still awaited. It was then agreed that Dr W’s answers together with any further submissions from the parties, could be forwarded to his Honour prior to delivery of his judgment (which he reserved at the conclusion of the hearing).
A letter dated 18 November 2012 from Dr W to the independent children’s lawyer was apparently then sent to his Honour on or about

23 November 2012 and submissions followed from the mother and the father.
As he recorded in his reasons for judgment subsequently published on

1 February 2013, his Honour considered that in the mother’s written submissions her application for summary dismissal had been re-agitated, and accordingly, he determined that application in his reasons for judgment.
In determining the summary dismissal application, his Honour referred to the answers by Dr W to the independent children’s lawyer’s questions numbered 8 to 10, which, together with the relevant questions, were as follows:
8.If the Court was to adopt a “flooding exposure” as mentioned towards the end of your report, should this be monitored by way of an interim order or not?
It is difficult to foresee how this could be practically achieved in the current circumstances without the risk of inadvertent physical harm to [B]. I do not believe that a graduated exposure would work given his level of anxiety when faced with the prospect of just discussing his relationship with his father. The only possible chance of successfully treating his anxiety would be removing him from his mother’s care and placing him with his father with no contact with his mother. This would of course only be an option if the Court found that [B] had not suffered, and was not at any risk of suffering from harm in his father’s care and that the benefit of having a healthy relationship with his father was significant enough to move his principal place of residence. How this transition could be affected safely is difficult to imagine. Three and half years ago [B] thought nothing of threatening his father with various sporting equipment when he was prevented from contacting his mother. I am unsure how you would prevent him contacting her and there is a real risk he would run away from his father’s care placing himself in significant danger. In the USA there is one program called Family Bridges which is a four day immersion program for the children and alienated parent following court ordered change of custody and a no contact order with the other parent which has reported reasonable success. There are no such programs that I am aware of in Australia.
9.Do you see any potential for harm to the children if they were to have visits with their extended paternal family including cousins, in the absence of the Father?
[B]’s fear/anger/hostility towards his father has been generalised to all of his paternal relatives. They have all been “tarred with the same brush” so to speak. I do not think that visits with the boys’ extended paternal relatives would be successful and would only lead to increased anxiety in both boys particularly [B].
10.Is your description of [B]’s fear and phobia of his Father in the second last paragraph of your report consistent with the Father having been demonised?
I am unaware of any legitimate justification for [B]’s fear/hostility of his father. There is no evidence that [the father] has acted in a way that would justify [B]’s severe fear of having contact with his father. [B] has rejected the possibility of having a relationship with his father without any justification that I am aware of.
In determining the re-agitated summary dismissal application, his Honour said at [12] of his reasons for judgment that having had the benefit of

Dr W’s answers in addition to his original report, he did not consider that he could find “that the father’s substantive application for parenting orders cannot succeed.” His Honour then cited the decision of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 in support of the proposition that “the guiding principle on an application for summary dismissal is doing what is just”, and that if proceedings are “doomed to fail then they should be dismissed.”
Then in an apparent endeavour to apply these principles to the present case, his Honour continued:
13.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.
14.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.
His Honour then considered and concluded that he would not grant the mother’s application for security for costs. Although there is a ground of appeal directed to his Honour’s refusal to order security, no submissions were specifically addressed to that ground, or indeed even to the issue of the application for security. Thus it will be unnecessary to consider further

his Honour’s refusal to grant security.
Finally, his Honour considered, but again refused to grant the mother’s application for a stay of his orders of 8 June 2012 pending the determination of the appeal against those orders. Again, although there was a ground of appeal directed to his Honour’s refusal to stay his previous orders, there were no oral or written submissions directed to that ground or to the issue of the stay, and accordingly, the refusal to stay need not be further considered.
Given the conclusions reached in his Honour’s reasons for judgment on

1 February 2013, the only order which he made to give effect to those reasons was to dismiss the mother’s application in a case filed on 31 August 2012.
On 27 February 2013 the mother filed a notice of appeal against that order made on 1 February 2013. The mother’s grounds of appeal against that order are as follows:
1.In making the order that he did the trial judge failed to have proper regard, as he was obliged to do by section s 69ZN(3) [sic] of the Family Law Act, the needs of the children of the marriage and the impact that the conduct of the proceedings may have on them in determining the conduct of the proceedings.
2.In making the order that he did the trial judge failed to have proper regard, as he was obliged to do by section s 69ZN(5) [sic] of the Family Law Act, the requirement to ensure that the children of the marriage were protected from abuse.
3.The trial judge was wrong in finding that there was a real prospect that the father could make out a case of a change in circumstances at trial.
4.The trial judge ought to have found that the father had not established a basis upon which it was likely that the orders of 8 October 2010 be discharged, varied or set aside.
5.The trial judge ought to have any regard to the report of [Dr W].
6.The trial judge ought to have found that the husband’s application had little or no prospects of success.
7.The trial judge ought to have dismissed the father’s application to discharge the consent orders of 8 October 2010 or made an order for security for costs.
8.The trial judge ought to have made an order staying the proceedings pending appeal.
Again, there were no specific submissions addressed to any of these grounds. However, we will endeavour to deal with the grounds as best we can, although we have already explained why the ground directed to the refusal to order security for costs (Ground 7) and the ground directed to the refusal to stay the previous orders (Ground 8) need not be further considered.

Grounds 1 and 2 raise the provisions of ss 69ZN(3) and (5) and are in identical terms to Grounds 1 and 2 of the first appeal. We have, in connection with the first appeal, raised doubts about the competency of grounds of appeal which rely on the principles in s 69ZN, and we need not repeat what we earlier said. However, we are not persuaded that in either of his decisions now appealed, his Honour did not have proper regard to the needs of the children, including protecting them from abuse, and to the impact of further proceedings on them.
Thus, only Grounds 3, 4, 5 and 6 remain for consideration. It is, however, impossible to consider Ground 5 further as no detail is provided in the Ground, or in any of the mother’s oral or written submissions, as to why

his Honour “ought not to have any regard to the report of [Dr W].” Indeed [6.3] and [7.2] of the written summary of argument for the mother could well suggest that it was her contention that his Honour should have had regard to Dr W’s report.
Grounds 3, 4 and 6 can be seen to raise concepts relevant to applications for summary dismissal.
Part 10.3 of the Family Law Rules 2004 (Cth) (“the Rules”) provides, in effect, that a party may apply for summary dismissal of an application on the following grounds:
(a)the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
Although there is no reference to parenting proceedings in Part 10.3, there must be some question as to whether an application for summary dismissal can be an appropriate application in parenting proceedings, the determination of which is generally covered by the “best interests” principle. This question must have particular validity in cases in which the principles in Rice and Asplund have application. However, none of these issues were raised before us, and thus it would not be appropriate for us to explore them further, although it should be noted that the last sentence of [13] of Forrest J’s reasons of 1 February 2013 suggests that his Honour was aware of these issues.
Assuming, that a summary dismissal application was available to the mother in this case, the appropriate test would have been “no reasonable likelihood of success”. It must be acknowledged that his Honour did not, at least expressly, apply this test. Rather, he apparently applied the “doomed to fail” test referred to by Kirby J in Lindon. The tests are, of course, conceptually different.
However, we are not persuaded that this court would be justified in interfering with his Honour’s order because of his apparent use of the “doomed to fail” test. This is because in [12] and [13] of his reasons his Honour made findings that are more akin to the “no reasonable likelihood of success” test. It cannot, in our view, be said that his Honour would have concluded that the father’s application “had no reasonable likelihood of success” given that his Honour said (at [12]) that he did not consider that he could find that the father’s application “cannot succeed”, and (at [13]) that he was not persuaded that he was wrong when he had decided in his first decision that there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing.
We would therefore also dismiss the second appeal.

Costs of the appeals

At the conclusion of the hearing of the appeals we invited and received submissions in relation to the costs of the appeals.
In the event that the appeals were dismissed, the father sought an order for costs. Counsel for the mother indicated that if the appeals were dismissed, a costs order could not be resisted.
We are satisfied that the circumstances justify an order for costs in favour of the father.

May j

introduction

The mother, who is the appellant, filed separate appeals from orders made by Forrest J on 8 June 2012 and 1 February 2013. The appeals were heard together.
Both appeals concern the future litigation of parenting issues between the parties. They have two boys, B born in March 2000 (now aged 13) and E born in April 2001 (now aged 12).
Put simply, the mother in the two applications before the judge was asking that the litigation cease whereas the father wishes to continue and seeks that the children come to live with him.
The independent children’s lawyer who was appointed by Forrest J on 8 June 2012 did not personally appear at the hearing of the appeals and contributed little other than filing a submission that supported the father’s argument, that the appeals be dismissed.

History

After a five day hearing in 2010, orders by consent were made by O’Reilly J on 8 October 2010. The relevant orders are as follows:
7. That the Mother and the Father and children attend upon [Dr W] for counselling at such time and frequency as directed by [Dr W] through the Independent Children’s Lawyer with the objective of assisting both parties in their conflict and to facilitate and monitor the reintroduction of the Father to the children;
…
18. That upon a satisfactory reintroduction of the Father into the children’s lives, under the guidance of [Dr W], the children spend time with the Father at all times as agreed between the parties but failing agreement as follows:-
(a)Each alternate weekend from after school Friday to 5:00pm Sunday;
(b)For half of all gazetted school holidays with the Father having the first half of the holidays in odd numbered years and the mother having the second half of the holidays, and the mother having the first half of the holidays in even numbered years with the father having the second half;
(c)For half of all special occasions including but not limited to children’s birthdays, parents’ birthdays, Mother’s Day, Father’s Day, and Christmas Day and the party with whom the children are not spending time with on the special day pursuant to these Orders, will spend time with the children for not less than two (2) hours if the day falls on a school day or four (4) hours if the day falls on a non-school day;
(d)All of the Easter celebration period;
(e)By telephone, at all reasonable times at the children’s instigation on the landline at their residence or on a mobile telephone;
(f)By telephone, on each Tuesday and Thursday between 6:00pm and 7:00pm at the Father’s instigation on the landline at the children’s residence or on a mobile telephone;
(g)Should a pupil free day fall on a Friday following the Father’s time with the children as outlined in order 19(a) [sic], then the Father’s time with the children will commence from after school Thursday;
(h)Should a pupil free day fall on a Monday following the Father’s time with the children as outlined in order 18(a), then the Father’s time with the children will conclude on Monday at 5:00pm.
(i)That alternate week-end time with the father be suspended during the school holiday periods.
19. That upon the children’s time commencing with the Father in accordance with order 18 above:-
(a)That the Mother and Father each exercise sole parental responsibility for the day to day care welfare and development of the children during those times the children are in their respective individual care;
(b)Except in relation to the commencement of time on the alternate Fridays, in respect of which the Father be responsible for the collection of the children after school at the children’s school, the Father shall be responsible for the collection of the children at the commencements of the Father’s time with the children at the [roadside travel centre] at [suburb N] at the McDonald’s cafe and the Mother shall be responsible for the collection of the children at the conclusion of the Father’s time with the children from the [roadside travel centre] at [suburb N] at the McDonald’s cafe;
(c)The Father must ensure that when the children are returned to the Mother they have with them all school items which were with them at the commencement of time;
(d)That the Mother and Father shall each keep the other informed of any medical conditions/treatment that the children may have or receive from time to time, and authorise the other to obtain information concerning the children’s health from such general practitioner and or specialist from time to time;
(e)That the Mother and Father sign and do all acts necessary to authorise/instruct any pre-schools or schools that the children attend to authorise the school to provide to the other parent copies of all school reports and any other reports on the children’s progress and behaviour issues and all notices received from the school including newsletters, parent letters and general notices;
(f)That the Mother and Father keep the other informed of all extra-curricular activities that occur at the children’s school and parent/teacher meetings, sporting/special events and any other activities to which the parents are invited.
…
NOTATION: The parents acknowledge that the intention of these orders is to put in place a child focused means by which the children might be re-introduced to the Father and spend substantial and significant time with him.
As can be seen from the orders it was intended that the mother, the father and the children attend upon the doctor. The independent children’s lawyer made arrangements for the family to have a number of appointments with Dr W. The hoped for “satisfactory reintroduction of the father to the children’s lives” has not occurred since the making of orders by O’Reilly J. As mentioned, the father wishes to recommence the proceedings with a view to having the children live with him.
A report of Dr W dated 29 November 2011 was provided to the independent children’s lawyer and subsequently filed in the proceedings. The doctor’s report is based on his notes taken during interviews with the family members in 2010 and 2011 after the consent orders were made. It explains his opinions about the children, especially the older boy B, who suffers from severe anxiety in relation to the prospect of having any contact with his father.
To appreciate the serious nature of the difficulties facing this family, the last paragraph of Dr W’s report is quoted below:
In the current circumstances it is too potentially dangerous to attempt to treat [B]’s anxiety by graduated exposure to the feared object in the controlled environment of my rooms. As outlined above [B] had a Panic Attack and ran away from my rooms with no thought of his own safety. Any treatment would require the full support of both parents and either graduated exposure in a safe environment such as a psychiatric ward or the Family Court offices or a “flooding” exposure whereby [B] is removed from his mother’s care and placed with his father for an extended period of time without contact with his mother. This would only work if [B] was unable to run away and reconnect with his mother. [E] does not have a significant anxiety disorder about his father and has just mirrored his older brother’s behaviour. If [B] was able to deal with his anxiety and reconcile with his father [E] would most likely follow him.

The Appeals

NA 59 of 2012 – the first appeal – Orders 8 June 2012

It is useful to set out the grounds at the outset:
1.In making the order that he did, the trial judge failed to have proper regard, as he was obliged to do by section s 69ZN(3) of the Family Law Act, [to] the needs of the children of the marriage and the impact that the conduct of the proceedings may have on them in determining the conduct of the proceedings.
2.In making the order that he did, the trial judge failed to have proper regard, as he was obliged to do by section s 69ZN(5) of the Family Law Act, the requirement to ensure that the children of the marriage were protected from abuse.
3.The trial judge was wrong in finding that there had been a change in circumstances.
4.The trial judge ought to have found that the father had not established a basis upon which it was likely that the orders of 8 October 2010 be discharged, varied or set aside.
5.The trial judge ought to have found that the report of [Dr W] did not support a finding of changed circumstances.
6.The trial judge ought to have dismissed the father’s application to discharge the consent orders of 8 October 2010.
The application of the father filed 16 December 2011 asked that all previous orders be set aside and that the boys be removed from their mother and live with him. Specifically it was asked that for the first six months they have no contact with the mother, and for the second six months contact be in a supervised setting. Further details of these arrangements were to be concluded through a professional advisor, who would “determine that the children are in a fit mental and emotional state to resume a shared care arrangement with both the father and the mother”.
In her response filed 7 February 2012, the mother sought orders that all previous orders be set aside, that the children live with her and she have sole parental responsibility. The orders sought by the mother contained in her affidavit filed at the same time as the response included an order that the father’s application should be summarily dismissed. The mother said, “I know of no alteration in circumstances that would justify the reopening of this matter”. The mother does not otherwise seek further orders.
On 8 June 2012 Forrest J dismissed the mother’s application, dismissed the father’s application for interim and procedural orders, and adjourned the matter to the Registrar for the making of directions as might be necessary for the further progress of the matter. This first appeal is from the order dismissing the mother’s application.
Put simply, the father’s case was that the failure of Dr W to effect a reunification with the children was sufficient to demonstrate that there has been a significant change in circumstances. The father has spent no time with the children since the trial ended in October 2010. The hearing before Forrest J was centred on this contention, especially on the basis of what has been described as the “rule in Rice and Asplund” (Rice & Asplund (1979) FLC 90-725).
Forrest J made reference to what the trial judge, O’Reilly J said, after the parties reached consent. There was one remaining issue for her Honour concerning where the father should collect the children on Fridays should contact recommence. O’Reilly J resolved this in the father’s favour. The following is taken from the reasons of O’Reilly J, the emboldened parts being those parts which Forrest J emphasised in his reasons:
2.Part of the agreement is that the children live with the mother, and after being reintroduced to the father satisfactorily under the guidance of [Dr W], psychiatrist, they spend time with the father at all times as agreed between the parties, but failing agreement each alternate weekend from after school Friday to 5.00pm Sunday, half school holidays, special occasions and other times.
…
13.…The whole basis of our being here for the whole week has been to achieve what’s been achieved, and I can say that what’s been agreed between the parties - if I had reserved my judgment this afternoon - what’s been agreed between the parties with the assistance of their lawyers is very likely to have been my determination in any event. So everyone is ad idem there.
So I just wanted to say, Mr Baston, and I’m sure that in the debrief you’ll explain this fully to the mother, nothing that I have said in the last half hour or so is intended to be insulting to her, or to have shown any prejudgment that she has been the cause of the children not wanting to see the father. There may well be dual causes or a multiplicity of causes of that, and it’s to be hoped that [Dr W] can sort it out.
It’s just that I think that because of the past situation, particularly in the transition phase until the children get used to seeing the father, it seems to me that if [B] put on a turn and said “I’m not going, I hate him. Why are you doing this to me?” then the mother wouldn’t be able to get him there or would say, “It’s okay you don’t have to go.” It’s easier on the mother the way I’ve ordered it because she doesn’t have to worry. The kids will be at school on those Friday afternoons. Dad picks them up and that’s that, straight into the car. So that allows for the smoother possibility of transition.
Now, I will also place on the record an observation I made about my reason for making final orders, which is now by consent, but Ms Carmody and the independent children’s lawyer had a reservation about that, and I have made clear, and I will now place on the record, in case things go off track in future, that I’m mindful of the rule in Rice & Asplund (1979) FLC 90-725, but since then there have been the decisions of Miller & Harrington (2008) FLC 98 283 at 72, and Marsden & Winch (2009) FamCAFC 152 at 41-47 first sentence.
As the latter two authorities show the rule is now applied taking into account best interest considerations, and the Court also must apply the provisions of Division 12A of the Act. Now, as the trial judge in this matter I can state that the final consent orders which have been made, and the one which I have determined, are all predicated upon the notation to the orders that the parents acknowledge that the intention of thee [sic] orders is to put in place a child focused means by which the children might be reintroduced to the father and spend substantial and significant time with him.
Order 18 is clear in its terms that upon - not if - but upon - a satisfactory reintroduction of the father into the children’s lives under the guidance of [Dr W] the children spend time with the father at all times as agreed between the parties, but failing agreement as set out. There is nothing in the orders that is predicated upon a presumption that if the proposed reintroduction fails then that’s the end of the matter and the boys and the father will continue to have no relationship. That’s not the way it works.
In my mind there is no doubt whatsoever that if a satisfactory reintroduction through [Dr W] is not achieved that in itself will be a significant and outstanding change of circumstances, not in the present relationship between the parties, but the predication of the success of these orders. If, therefore, they don’t work, and I sincerely hope that they do in the best interests of the children, if they don’t work then there will not be a barrier to the father instituting fresh proceedings for the children to be removed from the mother and to live with him.
(emphasis added)
The reasons of Forrest J were relatively short. His Honour explained the relevant history, including that after the parties separated in early 2007 the parents shared the care of the children until May 2008, when a serious dispute emerged, causing a disruption in the relationship between the father and the boys.
His Honour understood that the father’s case was that the mother had alienated the boys from him and that it was in their best interests that they live with him.
Forrest J considered the relevant authorities, including Marsden v Winch (2009) 42 Fam LR 1, and others related to the so-called Rice & Asplund principle. In my view, he did so correctly and stated how such a discretion to dismiss parenting proceedings ought be exercised.
The question in this appeal is whether his Honour correctly exercised the discretion and applied the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”) to these most unusual circumstances.
As there was some argument about whether O’Reilly J should have made any remarks at all in the context of making consent orders and the extent to which Forrest J should have been concerned with them, the provisions of ss 60CC(5) and 65DAA(6) and (7) of the Act in relation to consent orders are of passing interest. Section 60CC(5) provides:
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Subsections (2) and (3) provide the primary and additional considerations as to how the Court must determine what is in a child’s best interests.
Section 65DAA(6) and (7) provide:
Consent orders
(6)If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.
In my view, Forrest J correctly referred to what had been said by O’Reilly J as part of appreciating the history of the matter and assessing whether there had been a change of circumstances [25]. His Honour correctly acknowledged that he was not “determinatively bound” by the words of O’Reilly J.
It is necessary to then refer to what his Honour said in the reasons as to how he came to the conclusion that the mother’s application should be dismissed:
23.Although it was not expressly discussed at the hearing, I am satisfied that there was a clear understanding by the parties and their legal representatives that the Court was being asked to determine the matter as a preliminary question on the evidence that was put before the Court on the application.
…
26.Her Honour’s orders, it is clear, were predicated on an expectation that the process of therapeutic reintroduction of the father into the lives of the boys would be successful. They did not contemplate failure and having been made with the consent of the parties after consideration of all of the evidence in the matter, it is, in my view, reasonable to accept that all the parties, as well as O’Reilly J, expected such a reintroduction to work. In any event, on their face, the orders are clear in their meaning. Counselling was to take place with the psychiatrist and when the children were satisfactorily reintroduced to the father they were to begin spending substantial and significant time with him.
27.Having said all that, it appears to me that a significant question for determination now is whether when things do not actually occur as envisaged in the Court’s orders that can be a change of circumstances within the bounds of the applicable principles. I consider that the answer to the question just posed is yes. Whether the change of circumstances, having regard to the evidence in each particular case, is enough to allow the substantive application to proceed is another question.
28.In the case currently under consideration, I am satisfied that the failure of the expected reintroduction of the children to their father is a change in circumstances occurring since the previous orders were made. I am also satisfied, on the evidence currently before me, that there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing. The father seeks orders that would result in a dramatic change to the parenting arrangements applicable to the children. That, of course, will only happen if it is found to be in the best interests of the children. That is unlikely to be found to be the case if the father does not make out his case of alleged alienation by the mother.
29.The evidence, albeit untested, that persuades me, ultimately, to dismiss the mother’s application is the opinion evidence of the psychiatrist, Dr [W], which I have extracted from the conclusions in his report and quoted earlier in these reasons, as well as the evidence of the father that I have referred to in paragraph 17 of these reasons. In particular, Dr [W’s] opinion that it appears the mother has either consciously or inadvertently reinforced the eldest child’s anxiety by assisting him in avoiding his father coupled with the evidence of the father is evidence satisfying me, at this point in time, that the existing orders could be varied in a significant way as a result of a new hearing. The treatment options set out by Dr [W] clearly reflect ways in which the orders could, ultimately, be significantly varied.
30.I am mindful that the ongoing litigation itself and any continued conflict between the parents are potentially detrimental to these two children, but the nature of the significant change that might be the end result of further proceedings, namely orders that facilitate the children being able to have meaningful relationships with both parents rather than just one, in my view, on balance, justifies permitting the father’s substantive application to proceed.
(emphasis added)
In my view his Honour was correct in finding that the mutual expectation, that with the assistance of Dr W the boys could be successfully reintroduced to the father, had failed such that the orders made by O’Reilly J would be ineffective. The reasons given in this respect are entirely sound. A change of circumstances was demonstrated, as the expected reunification had not occurred. However in my view, his Honour was not correct, on the evidence before him, in finding that there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing.

The evidence of Dr W

Forrest J was correct to focus on the evidence of Dr W. There was no suggestion that the doctor’s opinion or his description of what happened in his rooms could be incorrect. There was no application by any party to cross-examine the doctor. An essential part of the evidence was that the doctor observed B having a “severe panic attack” when he first came to his rooms, despite being reassured that his father was not in the vicinity. The child ran from the rooms, “with little concern for his own safety”.
The doctor was able to talk to B at greater length the next day. The boy explained that “he was unable to recall anything fun that occurred at his father’s and that he never did anything he liked at his father’s”.
His brother E also said “there was nothing good about his father” and said he was suffering physical discomfort while being interviewed.
Under the heading “Conclusion”, the doctor acknowledged that the father alleged the mother had alienated the children but that the mother denied the allegations.
It must be said that the situation with these children is very difficult to understand. The children were spending considerable time with their father after separation until B developed, in the doctor’s words:
...more difficulty separating from his mother to spend time with his father. He would attempt to ring his mother frequently as a form of self medication for his anxiety and she would allegedly take him away from his anxiety by removing him from his father’s care. Unfortunately these actions would have only served to reinforce his anxiety about being with his father. This anxiety has been blamed on the father’s treatment of him however there is little evidence to support this contention. The only significant physical conflict either boy could remember was when [B] attacked his father with [sporting] equipment when he was trying to prevent him from ringing his mother. I would assume that [B] was having a Panic attack at the time.
It could hardly be said from this that the mother was actively alienating the child. What the doctor said in the report was: “it would appear that [B]’s mother has either consciously or inadvertently reinforced his anxiety by assisting him in avoiding his father”.
It is necessary to set out in part the doctor’s opinion:
It is more acceptable for [B] to “blame” his anxiety on his father and it is certainly congruent with the mother’s beliefs about the father. Avoiding his father means that he does not have to confront his anxiety but it does not fix the problem. The longer the period of separation the more entrenched and severe the anxiety becomes until [B] is having anxiety at the mere mention of his father and panic attacks when taken to medical practitioners to talk about his father. This anxiety is severe, clinically significant, out of keeping with the threat his father poses and has [led] to avoidance behaviour. If [B] reacted in this fashion to any separation from his mother [then] he would be diagnosed with a Separation Anxiety Disorder but he and his mother report that he is able to separate from her without problems to go to friends’ houses or school camps. As such [B] would meet the DSM 4 diagnostic criteria for a Specific Phobia Disorder centred on his father in the midst of an acrimonious custody battle…
Dr W’s final opinion is seen at the beginning of these reasons. Other evidence of the doctor about the boys is contained in the appeal being NA 10 of 2013.

The “Rice & Asplund” Principle – Grounds 3, 4 and 5

It should first be said that there is no doubt that this “principle” operates to support a number of provisions of the Act, even though the Act has been amended on many occasions since the judgment was delivered in Rice & Asplund in 1979. The “principle” is used as a form of case management and to ensure that the best interests of children are protected.
Case management practices were discussed by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 in the context of amendment of pleadings in civil cases:
93Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected: “[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard … ”
…
111An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
…
113In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
(footnotes omitted)
As to a consideration of the children’s best interests it is important to appreciate that there had been considerable expert opinion and interventions in this family’s life prior to the orders made by O’Reilly J. These reports were in evidence before O’Reilly J. Despite the best attempts of a number of experts, it was considered not possible to force the resumption of contact between the boys and their father. In particular, Dr S, a child psychiatrist, treated B and said in the last paragraph of his reported attached to an affidavit filed on 30 March 2010:
I am of the opinion that in the long term it would be in the interests of [B] and [E] to re-establish a relationship with their father…At present though I do not see how this can be achieved without considerable stress to [B] and I therefore question whether any forced contact would be in [B]’s best interests. I do believe that under pressure [B] could re develop significant anxiety and depressive symptoms. His history does suggest he is a boy with a temperament vulnerable to anxiety and therefore stability in his environment is of particular importance. I have tried to use my usual clinical approach to engage [B] about this issues and this has not been effective. I can only suggest that time may be a healing factor in this unfortunate situation. Having spent considerable amounts of time with all parties I cannot see any other resolution at this point.
In relation to the medical evidence, there was no change in the child B from that at the trial before O’Reilly J to that before Forrest J.
To the extent to which it is necessary in this matter, some reference should be made to the actual decision in Rice & Asplund and the cases following dealing with similar concepts.
A former Chief Justice, Evatt J, after referring to the argument that there must be a substantive change in circumstances said this (at p 78,905):
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, to quote Barber J., 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 (passage quoted in Hayman and Hayman (supra), at p. 75, 680). 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.
Of interest in that case, the mother’s remarriage was regarded as a sufficient reason for “re-opening the issue of custody”, even though that was a “probability” at the time of the previous hearing.
A number of decisions of the Full Court have followed this reasoning. None have departed from the basic principle, although in some cases, unsurprisingly, there has been further discussion about the proper approach. As would be expected there has been considerable emphasis on the need to protect children from the harm of repeated litigation.
In DL & W (2012) FLC 93-496 the Full Court, after referring at length to Rice & Asplund, provided the following discussion (from p 86,321):
63. Evatt CJ’s views were endorsed by the other members of the bench in Rice and Asplund and have been routinely followed ever since, including after the 2006 amendments to the Act. For recent discussions of the “rule” by the Full Court see Reid & Lynch (2010) FLC 93-448, B & J [2009] FamCAFC 103, Marsden v Winch (2009) 42 Fam LR 1, Caracini & Paglietta [2009] FamCAFC 188 and Gotch & Gotch [2009] FamCAFC 3.
64. The policy considerations underpinning the “rule” were explained in McEnearney and McEnearney (1980) FLC 90-866, where Nygh J said at 75,499:
“… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.”
65. The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman (1987) FLC 91-857 at 76,470–71:
“Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. … The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …”
66. The likely adverse impact of litigation on children has also been recognised in the High Court. In CDJ v VAJ (1998) 197 CLR 172 at 204 [118] McHugh, Gummow and Callinan JJ (albeit in a different context) said:
“… So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.”
67. The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in which Rice and Asplund is invoked. Subsection 69ZN(3) provides (our emphasis):
“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.”
68. There are, of course, cases where it is necessary, in the interests of the child, for a court to revisit “final orders”, whether made by consent or following a defended hearing. As Evatt CJ said in Zabaneh and Zabaneh (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):
“The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.”
69. As the Federal Magistrate noted, the Rice and Asplund authorities were reviewed in SPS and PLS, where Warnick J recognised that the purposes that can be served by the “rule” differ depending upon the stage of the proceedings at which it is sought to be applied. For example, in the event it is addressed as a preliminary matter it is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of the hearing.
70. Warnick J observed (at 87,451) that “at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’”. His Honour also recognised that “the application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”. We respectfully adopt those observations, with the latter being of particular importance in the determination of this appeal.
71. Warnick J’s views were also endorsed by the Full Court in Marsden v Winch (supra at 19 [47]), where Bryant CJ, Finn and Cronin JJ went on to say (footnotes omitted):
“48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the ‘rule’ in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
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.”
72. Their Honours continued:
“55. Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
56. In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. …”
73. The Full Court then described a two step process to be followed when the Rice and Asplund “rule” is invoked. Their Honours said:
“58. …there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”
(original emphasis)

In my view, the first requirement, that there be a prima facie case may have been satisfied but not the second. Forrest J was incorrect in concluding on the evidence before him, particularly that of Dr W, that the existing orders could be varied in a significant way and in the children’s best interests. In addition, the evidence did not reveal that it was likely that the father would succeed in demonstrating that the mother had alienated the children justifying the extreme step of removing the boys from her. The appeal should be allowed. The mother’s application should succeed in the children’s interests.

OTHER GROUNDS – 1 & 2

In this appeal, in addition to the Rice & Asplund argument, particular emphasis was placed on the provisions of s 69ZN(3) (ground 1) and s 69ZN(5) (ground 2). Those provisions are as follows:
Principles for conducting child-related proceedings
Principle 1
s 69ZN(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.
Principle 2
s 69ZN(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
s 69ZN(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
S 69ZN(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
S 69ZN(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The principles encapsulated in s 69ZN only serve to support the conclusion that further litigation at this time could not possibly be in these children’s interests.

NA 10 of 2013 – The second appeal – orders 1 February 2013

NA 10 of 2013 was filed on 27 February 2013 from the order made on 1 February 2013, where Forrest J dismissed the mother’s application filed 31 August 2012.
That application asked that the father’s application be dismissed or permanently stayed. In the alternative an application was made for security for costs. That application was also unsuccessful.
In the mother’s affidavit filed 28 May 2012 and repeated in the outline filed 15 November 2012 in support of the dismissal application, it is revealed that the litigation to that point had cost $200,000 and that it had become necessary to sell the family home.
As in my view the first appeal should be allowed it is not necessary to say a great deal about this appeal except to the extent that it might otherwise be thought that the first appeal should not be allowed and to explain that although the evidence is largely the same the remedies sought are quite different.
The grounds in this appeal are as follows:
1.In making the order that he did the trial judge failed to have proper regard, as he was obliged to do by section s 69ZN(3) of the Family Law Act, the needs of the children of the marriage and the impact that the conduct of the proceedings may have on them in determining the conduct of the proceedings.
2.In making the order that he did the trial judge failed to have proper regard, as he was obliged to do by section s 69ZN(5) of the Family Law Act, the requirement to ensure that the children of the marriage were protected from abuse.
3.The trial judge was wrong in finding that there was a real prospect that the father could make out a case of a change in circumstances at trial.
4.The trial judge ought to have found that the father had not established a basis upon which it was likely that the orders of 8 October 2010 be discharged, varied or set aside.
5.The trial judge ought to have any regard to the report of [Dr W].
6.The trial judge ought to have found that the husband’s application had little or no prospects of success.
7.The trial judge ought to have dismissed the father’s application to discharge the consent orders of 8 October 2010 or made an order for security for costs.
8.The trial judge ought to have made an order staying the proceedings pending appeal.
It will be seen ground 6 is most significant.
The trial judge referred to his previous reasons and said: “Consideration of [Dr W’s] report in the light of those orders [O’Reilly J] and her Honour’s reasons for those orders is what led me to dismiss the mother’s application”.
Following the doctor’s report dated 29 November 2011, Forrest J made an order allowing the parties to ask questions clarifying that report. The independent children’s lawyer wrote to Dr W with a list of specific questions. The doctor replied by letter on 18 November 2012. Set out below are some of the independent children’s lawyer’s questions and the doctor’s responses:
1.How long did you spend in interview with [the father] before determining not to attempt a reconciliation?
I saw [the father] for two sessions in November 2010. These sessions were between 45 and 60 minutes each. I did not determine that I was not going to attempt a reconciliation between him and the boys until after I had seen all parties concerned some six months later.
…
3.How long did you spend in interview with [B] before determining not to attempt a reconciliation?
As described in my report I saw [B] on two consecutive days in April 2011. [O]n the first occasion I was not able to obtain any useful history but I was able to observe the severe nature of his anxiety when confronted with the prospect of having to talk about the relationship with his father. I saw him on the following day for about an hour and gathered the history as described in my report.
4. Prior to determining not to attempt a reconciliation were you aware that [Dr S] was [B]’s treating psychiatrist?
I was aware that [Dr S] had treated [B] in the past.
…
8.If the Court was to adopt a “flooding exposure” as mentioned towards the end of your report, should this be monitored by way of an interim order or not?
It is difficult to foresee how this could be practically achieved in the current circumstances without the risk of inadvertent physical harm to [B]. I do not believe that a graduated exposure would work given his level of anxiety when faced with the prospect of just discussing his relationship with his father. The only possible chance of successfully treating his anxiety would be removing him from his mother’s care and placing him with his father with no contact with his mother. This would of course only be an option if the Court found that [B] had not suffered, and was not at any risk of suffering from harm in his father’s care and that the benefit of having a healthy relationship with his father was significant enough to move his principal [sic] place of residence. How this transition could be affected safely is difficult to imagine. Three and half years ago [B] thought nothing of threatening his father with various sporting equipment when he was prevented from contacting his mother. I am unsure how you would prevent him contacting her and there is a real risk he would run away from his father’s care placing himself in significant danger. In the USA there is one program called Family Bridges which is a four day immersion program for the children and alienated parent following court ordered change of custody and a no contact order with the other parent which has reported reasonable success. There are no such programs that I am aware of in Australia.
…
10.Is your description of [B]’s fear and phobia of his Father in the second last paragraph of your report consistent with the Father having been demonised?
I am unaware of any legitimate justification for [B]’s fear/hostility of his father. There is no evidence that [the father] has acted in a way that would justify [B]’s severe fear of having contact with his father. [B] has rejected the possibility of having a relationship with his father without any justification that I am aware of.
His Honour referred to the further evidence of Dr W contained in the questions asked of the doctor and concluded that he could not find “that the father’s substantive application for parenting orders cannot succeed”.
In refusing the mother’s application, Forrest J referred to Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541. In my opinion, his Honour correctly observed that this application would be decided “on slightly different principles” from the previous application. Forrest J was correct in refusing to dismiss the father’s application on a summary basis. The judge was also correct in refusing to make the order for security for costs.
In my view, the test for summary dismissal of a case once instituted, compared to the test for the recommencement or reopening of proceedings following the making of final orders is different.
The principles guiding the exercise of discretion under a court’s inherent power to dismiss proceedings were explained by Kirby J in Lindon v The Commonwealth(No 2) and referred to by the Full Court in Bigg & Suzi (1998) FLC 92-799 (at 84,974). Kirby J said (at 256):
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.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 pleading…
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(footnotes omitted.)
Although Forrest J did not directly refer to the Family Law Rules 2004 (Cth) (“the Rules”), and while there is no doubt there is inherent power to summarily dismiss an application, it is appropriate to set out r 10.12:
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
…
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
His Honour applied the test of “doomed to fail” which is no longer the correct test, see Spencer v The Commonwealth (2010) 241 CLR 118 particularly at p. 139 and 140. At paragraph 56 referring to similar Federal Court Rules, Hayne, Crennan, Kiefel and Bell JJ said:
Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evidence that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.
The applicable test for summary judgment was recently considered by another intermediate court of appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158. The applicable legislation in Victoria is provided in the Civil Procedure Act2010 (Vic) the words being where there is “no real prospect of success”. Warren CJ & Nettle JA said:
35 Upon the present state of authority:
a)the test for summary judgment under s 63 of the Civil Procedure Act2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
Although the test applied by his Honour was incorrect, the judge was correct in refusing the applications for summary dismissal. The second appeal should be dismissed.

conclusion

I have now received the joint judgment of my learned colleagues Finn and Strickland JJ who would not allow the appeal. I would allow the appeal and add that although it is possible an order could be made after another trial, in view of the unchallenged medical evidence it could not be in the children’s best interests. There is no contrary evidence, the possibility of orders being made after another lengthy trial is entirely speculative and could not be justified.
In the circumstances of this case I would not remit the matter for further hearing as there would be no utility in such a step. I would order that the father’s application be permanently stayed. The Court’s inherent power to dismiss or permanently stay proceedings which cannot succeed is not in doubt (Bigg & Suzi).
The distinction between ordering dismissal and ordering a permanent stay was discussed by the Full Court in Fennessy & Gregorian (2009) FLC 93-399 at paragraphs 29, and 34-35. Their Honours’ (Coleman, Boland and Thackray JJ) observed that:
29.Whilst there may in practice not be a significant distinction between the courses, the reality is that only an order for dismissal, and consequential extinguishment of the Court’s jurisdiction, brings absolute finality to the proceedings. Although it is difficult to suggest how, as an order permanently staying proceedings does not have that consequence, it may be that the father in this appeal would be potentially advantaged by an order permanently staying his appeal.
To dismiss the father’s application would wrongly suggest that the application has been dealt with on its merits. As has been explained, finality to this litigation is presently in the best interests of these children. I am satisfied that on the present facts that finality can be achieved by a permanent stay of the father’s application without, unfairly to the father, dismissing his application.

I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 21 October 2013.

Associate:

Date: 21 October 2013