Chetti & Bhavalakar
[2022] FedCFamC2F 194
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chetti & Bhavalakar [2022] FedCFamC2F 194
File number: MLC 10813 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 7 February 2022 Catchwords: FAMILY LAW – interim hearing – application pursuant to the rule in Rice & Asplund – application for summary dismissal of section 79A application – rule 10.13 application – restraining a parent relocating. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2A), 79A, 79A(1)(a), 75(2).
Federal Circuit and Family Court of Australia Act 2021 (Cth).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13(1)(a).
Cases cited: AMS v AIF (1999) 199 CLR 160.
Ballan & Sandford [2018] FCCA 2436
Barbey & Tuttle (2013) FLC ¶93-534
Birk & Farwell [2021] FedCFamC2F 234
Defrey & Radno (No 2) (2021) FLC ¶94-044
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode [2006] FLC ¶93-286
In the marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725
Keavney & Mohlis [2021] FCCA 396
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
Malak & Malak (2016) FLC ¶93-718
Marsden & Winch (2013) FLC ¶93-560
Morgan & Miles (2007) FLC ¶93-343
Oswald & Karrington (2016) FLC ¶93-726
Re K [1994] FamCA 21
Richardson & Colombo [2021] FedCFamC1A 35
Ritter & Ritter and Anor (2020) FLC ¶93-957
Sampson & Hartnett (No. 10) [2007] FamCA 1365
Spencer & Commonwealth [2010] HCA 28
Stringer & Nissen (No. 2) (2019) FLC ¶93-922
Wilburn & Wilburn (2020) FLC ¶93-979
Division: Division 2 Family Law Number of paragraphs: 78 Date of hearing: 7 February 2022 Place: Melbourne Counsel for the Applicant: Mr C Trim Solicitor for the Applicant: Bramham Lawyers Counsel for the Respondent: Mr C Horsfall Solicitor for the Respondent: Hope Earle Lawyers ORDERS
MLC 10813 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CHETTI
Applicant
AND: MR BHAVALAKAR
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
7 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Respondent Father's application pursuant to the rule known as the rule of Rice & Asplund be and is dismissed.
2.The Applicant Mother's application pursuant to rule 10.13 of the Federal Circuit and Family Court Rules 2021 (Cth) be and is dismissed.
3.The Respondent Father's application for the summary dismissal of the Applicant Mother's application to set aside the property order of 27 April 2018 pursuant to section 79A of the Family Law Act 1975 (Cth) be and is dismissed.
4.Until further order the Respondent Father be and is restrained from relocating the child's residence.
5.The matter be adjourned to 16 June 2022 at 10.00am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia at Melbourne.
6.The Applicant Mother's application to spend time and communicate with the child X born 2013 be adjourned to the interim defended hearing date above.
7.The Respondent Father's application to relocate the child's residence to Sydney be adjourned to the interim defended hearing date above.
8.Any further affidavit to be relied upon at the interim defended hearing must be filed and served no less than 7 days prior to the hearing.
Appointment of Independent Children's Lawyer:
9.Pursuant to section 68L(2) of the Family Law Act 1975 the child X born 2013 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:
(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and
(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.
Child Impact Report
10.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the child X born 2013 ('the child') are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children's Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on 11 April 2022 with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Melbourne registry (unless otherwise advised) on the morning of 13 April 2022. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
11.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
12.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
13.Not later than 4.00 pm on 14 February 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
14.Pursuant to order 7 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child's maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the child.
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
15.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
16.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and any subpoenaed documents.
Conciliation Conference:
17.The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Registrar of the Federal Circuit and Family Court of Australia on 27 April 2022 at 9.00am.
18.The parties and any lawyers on the record shall follow any directions from the Registrar convening the conference in relation to attendance in person, by Microsoft Teams or by telephone.
19.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the Applicant and Respondent must pay the Conciliation Conference fee in equal amounts no less than 14 days prior to the Conference.
20.At least 14 days prior to the conference date, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email to the relevant case manager at …@fcfcoa.gov.au and to the other party, a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution)
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders;
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v)particulars of any financial resource;
(vi)a valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii)statements for, and where applicable, valuations of any superannuation interest;
(viii)written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
Final Hearing:
21.The proceedings be adjourned to 15 May 2023 at 10.00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit and Family Court of Australia at Melbourne.
22.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
23.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
24.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 56 days prior to the Final Hearing.
25.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 42 days prior to the Final Hearing.
26.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 28 days prior to the Final Hearing.
27.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.
28.Each party file and serve a case outline no later than 7 days prior to trial and provide a copy in Word format to the associate with the case outline to include:
(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b)A brief chronology of relevant events;
(c)A precise minute of the orders the party is seeking; and
(d)A list of authorities to be relied upon, if any.
29.For face to face final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge's working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness' own affidavit.
30.No later than 3 days prior to trial, the legal representatives (and the parties themselves if self represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination of each witness.
AND THE COURT NOTES THAT:
A.Unless agreed, it is likely an expert report will be required as to the value of the Respondent Father's property.
B.It is likely a single expert report is required as to the psychiatric health of both parents and the assistance of the Independent Children's Lawyer in that regard is requested.
C.Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:
(a) the total costs and disbursements incurred by the party in the proceeding to date;
(b)an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
(c)an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.
D.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed or kept with the Court file after the conclusion of the conference.
E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
F.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
G.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
H.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
I.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Chetti & Bhavalakar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore on 7 February 2022. The transcript has been settled for clarity, grammar and evidence and legislation referred to has been inserted. Authorities cited ex tempore and others have been included. This matter comes before me as an interim defended hearing following the issuing of proceedings on 1 October 2021. The applicant mother is 32 (‘the Mother’) and the respondent father is 38 (‘the Father’).
The Father lives in a western suburb of Melbourne and although has some experience in finance, he has for many years been working in transport earning a modest income. The Mother is currently working in the service industry and earning a very modest income. The parties commenced cohabitation when they married in 2011 and they separated on or about July 2017 and were divorced on 10 September 2018. The parties have a daughter, X, who is now aged eight (‘the child’).
There are competing allegations of family violence. Each says they are a victim of family violence at the hands of the other parent. The Father's allegations from his affidavit filed 17 December 2021 include the following:
31.On 16 July 2017, shortly after the Final Intervention Order was made,[ Ms Chetti] was charged with a breach of the Final Intervention Orders following an incident whereby [Ms Chetti] attacked my mother with a knife while [X] was present. The police attended the house and removed [Ms Chetti]. I am unsure if the charge was pursued or resolved given that [Ms Chetti] returned to Country B.
32.In or around June 2021, I became aware that [Ms Chetti] had returned to Melbourne after receiving the following message via Instagram:
"Hello [Mr Bhavalakar] .... this is [Ms Chetti] .... the biological mother of [X] .... this is to inform U that I have arrived in Melbourne and have contacted the family court of Australia .... and my lawyer has asked me to contact you so that we can make an arrangement to let me see my child [X] .... if U still dont respond to me . . there will be a letter to u from an organisation and they will try to do the mediation between .. but if U still refuse to that ... I will get access to go to the court in order to vary the parenting orders ...
…
…
35.In or around 30 June 2021, the police attended my property to conduct a welfare check that [Ms Chetti] had requested.
36.Given the history of family violence with [Ms Chetti] and my ongoing concerns about her mental health, I made an Application and Summons for an Intervention Order on 20 August 2021. The matter was listed for a Mention Hearing on 20 October 2021 at which time an Interim Intervention Order was made. A copy of the Application and Summons for an Intervention Order can be made available to the Court upon request.
…
45.As to paragraph 13, I strongly deny the allegations of family violence alleged by [Ms Chetti] and say that [Ms Chetti] subject [X] and I to family violence. I refer to and reiterate paragraphs 30 to 36 herein in relation to family violence in the relationship
The Mother’s allegations quoted from the psychological assessment report of Ms C (annexed to the Mother’s affidavit filed 5 February 2022) and include the following:
EVIDENCE OF FAMILY VIOLENCE
[Ms Chetti] provided detailed examples of the various forms of family violence to which she had been subjected by [Mr Bhavalakar] and his family. Details of the abuse are outlined in her 2nd September 2017 Affidavit. She mentioned the abuse commencing within weeks of them marrying and continuing throughout the duration of their marriage.
Physical Abuse:
According to [Ms Chetti], although pregnant at the time, on the day she was due to fly to [Country B] with [Mr Bhavalakar] (around November 2012), he slapped her on her face to punish her for not earning money.
…
She disclosed being physically assaulted by [Mr Bhavalakar] while she was heavily pregnant and mentioned one occasion when [Mr Bhavalakar] hit the "baby bump" and the baby stopped moving. …
According to [Ms Chetti], within two month of giving birth the physical abuse recommenced. She recalled one incident in November 2014, where the severity of the physically violence was so extreme, she called Victoria Police and applied for a Family Violence Intervention Order (FVIO) preventing [Mr Bhavalakar] from making contact with either herself or [X]. …
Also reported was an incident which occurred on 16th July 2017, where [Mr Bhavalakar] assaulted her and broke her gold chain. [Ms Chetti] also recounted several incidents of physical abuse by [Mr Bhavalakar's] mother. …
Verbal:
[Ms Chetti] reported being subjected to continual threats by [Mr Bhavalakar] over the course of her marriage. Examples provided by [Ms Chetti] included threats by [Mr Bhavalakar] to divorce her and take [X] away and threats to send her to [Country B] so she will never be able to see [X] again.
She explained, [Mr Bhavalakar] would call her at work and abuse her so severely she would experience fear and extreme anxiety in relation to the thought of returning home to more family violence; the continual pressure causing her to lose her position after only four months.
According to [Ms Chetti] she was also threatened, cursed, belittled, criticised and generally degraded by members of [Mr Bhavalakar's] family, in particular, his mother, as his family set about trying to manipulate and control her.
Psychological/Emotional:
[Ms Chetti] was able to provide specific examples of the humiliation, belittlement, harassment and ridicule to which she was subjected by [Mr Bhavalakar] and his family. She recalled spending hours in her room crying following episodes of psychological abuse she was frequently made to endure. …
The most indicative of [Ms Chetti] ill-treatment is revealed in her recounts of her mother-in-law, on learning that she gave birth to a girl and not a boy, bursting into tears and immediately leaving the hospital.
Financial:
… She explained how despite her family having been told [Mr Bhavalakar] was an accountant and earning a good income, on her arrival in Australia in June 2011, [Mr Bhavalakar] demanded she hand over all of her gold and jewellery, which he then sold and used the money gained from the sale to make rental payments.
[Ms Chetti] recalled how [Mr Bhavalakar] also confiscated all the cash she received from family and friends as gifts following the birth of [X]. She explained how [Mr Bhavalakar] would control the money and on many occasions used her credit card for his purposes and transferred money from her account into his own without her prior knowledge.
…
This being an interim hearing and a preliminary hearing on the papers I am not in a position to make factual findings in regard to those competing allegations each parent makes and the other denies.
The uncontroversial history is that the parties were engaged in litigation in 2017 and '18 which ended with final orders made on what appears to be an undefended basis on 27 April 2018. The Mother was not present for the hearing nor was she represented. The Father was represented at that hearing. It is common ground that prior to that order the Mother had suffered poor mental health for some time and that was the context of Ms C, the psychologist, assessing her as at September 2017.
At that time Ms C had some guarded confidence for the Mother's psychological health though she was of the opinion that the Mother's psychological ill health related to what Ms C accepted as a factual account of the relationship. The Mother had been having supervised time prior to the undefended orders with the last supervised time on 31 December 2017.
There was a conciliation conference fixed for 1 March 2018 and the Mother did not appear. At some point, and it is likely after the conciliation conference of 1 March 2018, the matter was fixed for final hearing and/or at least listed on 27 April 2018. On 27 April 2018 final orders were made as I have stated previously.
It is common ground, or at least not disputed by the Father, that the Mother left Australia for Country B on 30 April 2018, that is three days after the hearing, and she returned to Australia on 23 May 2021. It is common ground that the Mother has not seen or communicated with the child since the last supervised session in 2017.
The parties had previously lived in Australia and then lived in Country B and on the Father's account for about a month in 2016 the Mother cared for the child herself in Country B before returning to join the Father in Australia.
The Mother was assessed at one point by D Clinic. It is common ground that on or about 21 March 2021 the Mother was admitted to a psychiatric hospital for some time. Today I am told the Mother instructs her counsel that that was for about a month and that she was a compulsory patient.
It's also common ground that the Mother's previous solicitor, Mr E, obtained an intervention order against the Mother and that the Mother had or was alleged to have asserted at one point that she had a relationship with that lawyer's son. The Mother's case before me today is that those allegations are and reports of them relate to part of her psychiatric ill health at the time and that, in fact, she was never actually engaged to her previous lawyer's son whatever she might have said about that at the time.
The Mother issued these proceedings on 1 October 2021. The Mother's evidence as to what had befallen her in the lead up to the final hearing is set out in paragraphs 43 to 47 of the Mother's affidavit filed 13 January 2022.
43.In … 2018, due to financial issues I became homeless for two months. During my homelessness I was living on the streets of Melbourne CBD, sleeping on park benches. I sustained [an illness] and was admitted to [F Hospital] for treatment.
44.Whilst in hospital I was psychologically assessed. I was in a terrible mental state and so after [my illness] was treated, I was admitted into the psychiatric ward to receive psychological treatment. My mind is vague on exactly what I was admitted for and treated for however my Lawyer is making enquiries about these medical records.
45.Upon my release from hospital, I had no job, no money, and no permanent residency. My Lawyer had ceased acting for me and I had nowhere to turn. I believed that I had a hopeless chance of fighting for [X].
46.I don't recall being aware of a conciliation conference scheduled in March 2018, however in any event, I was not mentally well enough to turn my mind to it.
47.In April 2018, I travelled home to [Country B] as I thought I could receive support there. I had no support in Australia. It was soon after I relocated that I learned that there was a Court date I was unaware of, and that [Mr Bhavalakar] had gained sole parental responsibility for [X]. I was devastated, but not mentally well or fit enough to continue fighting.
The Mother also alleges that the circumstance of her lawyer filing a notice of withdrawal on 22 January 2018 were as follows:
39.At the time, [Mr E] of [G Lawyers] in [Suburb H] were representing me. I was introduced to my Lawyer through an uncle of mine. I put all my trust in him however I do not believe he acted in my best interests. He failed to notify me of important dates, and I felt very unsure of the process.
40.Throughout 2018, my headspace was very bad to the point where I was struggling to provide instructions to my Lawyer. I was mentally and physically exhausted.
On the Mother’s account her circumstances at that time are extreme. I have not been provided with an account from any lawyer who was present at the time of the orders on 27 April 2018 nor the transcript thereof and I am told there may be a family report which would have contextualised those proceedings. There was some criticism made of the orders in the proceedings. I am entitled to rely on the presumption of regularity and I do not regard those orders as having been made on a default of appearance basis but rather upon an inquiry into the best interests of the children and with just and equitable property orders being made on the information available to the court at that time. A transcript of those proceedings may be relevant in any further proceedings.
The Mother returned to Australia from Country B on 23 May 2021. She had, she says, learned only in 2020 that she had, in fact, obtained permanent residence in Australia and that up until that point in time she was in the difficult position of believing that she had no visa rights to return to Australia and hence no way to reconnect with her daughter.
The Father has set out what he says the child has said about her mother in his affidavit filed 17 December 2021 as follows:
19.Since in or around 2018, upon [Ms Chetti] abandoning the proceedings and relocating to [Country B], [X] asked me on approximately 4 separate occasions where [Ms Chetti] was and when she will be able to see or speak to her. I explained to [X] that her mother had moved to [Country B] with her parents for a little while and that she still loved and cared for her very much. As time progressed, [X] started asking less and less about her mother and busied herself with school and with her involvement with her schooling activities and so on. [X] has not asked about her mother in. recent times
(emphasis added)
The applications that are alive before me today are as follows. Firstly, the Mother seeks to rebut the principle In the marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725 (‘Rice & Asplund’) application for dismissal and in the alternative asserts that if the Rice & Asplund application of the Father is successful then the Mother seeks to set the undefended orders aside pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth):
10.13 Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
…
The next matter pressed by the Mother's counsel was that, in substance, though expressed to be by way of stating that the Father should not have leave to relocate to Sydney at this point of the litigation, was effectively an application for an injunction to restrain the Father from moving to Sydney. The Mother expresses with some circumspection that she only learned of the planned move to Sydney upon her return to Australia and she has connected the dots and says the move to Sydney is only an attempt to make her relationship with the child difficult. The Father, on the other hand, says that he had planned to relocate to Sydney well prior to learning of the Mother's arrival back in Australia.
He says that he has good reason to go to Sydney. He says he has a community that he wishes to be part of, family support, better employment prospects, suitable education facilities for the child and I must take into account, in any event, that is where he wants to live.
The next matter is that the Mother then pressed, but only faintly, that if she was successful on either Rice & Asplund argument or the rule 10.13 argument and on the Sydney injunction then order alternate weekend time for her with the child.
The next argument put was in regard to the property orders and it was sought initially for leave to bring a section 79A application and the Mother's outline of case and application at one point has joined the concepts of section 79A, section 44(3) (leave out a time) and rule 10.13. Those are different concepts and different tests apply to each matter.
Addressing the Rice & Asplund matter the Mother's counsel presses that there are significant changes of circumstances that warrant such a revisiting of the final orders. It is put that the Mother:
(1)is now employed;
(2)now has stable accommodation;
(3)is now of good mental health; and
(4)is now under psychological treatment and therapy with a psychologist.
The Father asserts that the Mother was in poor mental health at the time of the orders and, he says there is no satisfactory evidence to demonstrate that she is not in poor mental health at the moment and, hence, given the delay in bringing these proceedings and seeking to reconnect with the child that there has been a lack of action, if not abandonment of the child, and a failure to participate in court events whereby the circumstances of 2018 in the lead up to the 27 April 2018 undefended orders are repeating themselves and, hence, there is no sufficient change of circumstances.
The Father's solicitor has appropriately set out a short summary of the relevant test in regard to Rice & Asplund and I adopt and repeat paragraphs 7 and 8 of that outline as conveniently stating the law.
7.The Father refers the Court to the rule in Rice v Asplund (1979) FLC 90-725. The Father submits that the Mother has not identified in her affidavit filed 13 January 2022 any matter, or any combination of factors, which would satisfy the Court that there was a “changed circumstance which will justify such a serious step”
8.In Marsden v Winch [2009] FamCAFC 152, the Court said (at 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:
•The past circumstances, including the reasons for the decision and the evidence upon which it was based
•Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing
•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.
I use the three matters at [50] of Marsden & Winch (2013) FLC ¶93-560; [2009] FamCAFC 152 (‘Marsden & Winch’) as the legal matrix of the test to determine whether there is a significant change of circumstances such as will justify such a serious step as further litigation. I will refer to the three matters raised at [50] of Marsden & Winch above.
The first is the past circumstances including the reasons for the decisions and the evidence upon which it was based. I have sufficient information from the parties' common ground position about the past circumstances that I am able to deal with the matter. I do not have the reasons for the decision or the evidence upon which it was based. It was not available to me. For reasons not clear to me the matter was able to be filed in a separate file number and I have the electronic file and I am working from home (due to COVID-19 contact). The Mother's solicitor was only able to peruse the hard copy of the file on the previous Friday. Hence, I do not have the reasons and I do not have other evidence like a family report.
Nonetheless, it is common ground that the Mother was suffering very significant psychiatric ill health in the lead up to the final hearing.
The authorities that deal with Rice & Asplund hearing as a preliminary hearing on the papers say I must accept the applicant's evidence on such an application. In Defrey & Radno (No 2) (2021) FLC ¶94-044 the Full Court repeated at [14] what that Full Court has observed in the May 2021 reasons at [16-21]. I cite only [16], [19], and [21] for the purposes of these reasons.
14.It is convenient to repeat what we said at [16]–[21] of the May 2021 reasons relating to the test relevant to the mother’s application:
16The evidence of the father had to be accepted at its highest, and as Warnick J said in SPS and PLS (2008) FLC ¶93-363 (“SPS and PLS”) at [81] and [84], the essential question to be asked is, assuming the evidence of the father is accepted, are the “new events” sufficient to provoke a new enquiry (see also Miller & Harrington (2008) FLC 7 ¶93-383 at [105], noting that an alternative formulation of the question has been propounded by the Full Court in Marsden v Winch (2009) 42 Fam LR 1 at [58] with the emphasis on the establishment of a prima facie case of change of circumstances).
…
19In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
…
21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
(emphasis added)
The Mother's evidence is that she was homeless and psychiatrically ill and not able to comprehend either the fact of the hearings or when they were. That is the past circumstances in regard to the decision.
The next aspect is whether there was a likelihood of orders being varied in a significant way as a result of another hearing. In the circumstances where it is the Mother's case, which I must accept on a Rice & Asplund preliminary hearing on the papers, that her mental health is very much improved and is now stable and she points to facts that she says corroborate that assertion. That is, being in regular employment and maintaining stability of accommodation in shared accommodation over some significant period of months, not just a matter of days, and that she is now receiving psychological counselling. Hence, I find that there is a likelihood of the orders being varied in a significant way as a result of a new hearing.
The third point is if there is such a likelihood, and I have found that there is, whether the nature of the changes that may be made, when weighed against the potential detriment to the child of the litigation, whether the likelihood of those changes outweighs that detriment.
I find that the likelihood of changes does outweigh the detriment. Hence, following the [50] pathway of Marsden & Winch to answer the question of whether there is a significant change of circumstances and whether that change justifies the reopening of litigation (with all the trauma and trouble for the child that comes with it). I find that there is or has been a sufficient change of circumstance that justifies the litigation.
It must be noted that that is a finding upon the legal test of the weight to be given to the Mother's case and evidence. That does not mean upon another interim hearing or a further hearing or a final hearing that the Mother's case is accepted. The Father disputes some of those historical factors and he disputes and does not accept what the Mother asserts is a significant improvement in her mental health at this point in time.
The next aspect is the alternative argument at paragraph (1)(a) of 10.13. Strictly speaking it is not necessary that I resolve that matter but lest I be in error on the Rice & Asplund matter I think the parties are entitled to know my finding about that aspect.
The Mother's solicitor has identified and relied on the decision of Judge Altobelli, as he was then, in Ballan & Sandford [2018] FCCA 2436 (‘Ballan & Stanford’) and set out three tests and I repeat paragraph 31 of the Father’s solicitor's outline of case:
31.Judge Altobelli (as he then was) set out three underlying principles. Those principles were:
(a) a reasonable explanation for the absence;
(b)secondly, being able to point to material that might reasonably lead to an order different from that sought to be set aside; and
(c) lastly, the issue of prejudice to the respondent.
In Richardson & Colombo [2021] FedCFamC1A 35, the Full Court (sitting as Strickland J) observed that Full Court authority as to rule 16.05 should be followed. Strickland J referred to Barbey & Tuttle (2013) FLC ¶93-534 (‘Barbey & Tuttle’) and Malak & Malak (2016) FLC ¶93-718 (‘Malak & Malak’).
Ballard & Stanford cited Clifford & Montford [2006] 219 FLR 437 (‘Clifford & Montford’) and although, not reciting the principles set out in that case at [34], by clear inference, applied those principles. Barbey & Tuttle at [38] recites and emphasises the principles from Clifford & Montford and inferentially approves them. Malak & Malak at [58] cites and approves the Clifford & Montford principles cited in Barbey & Tuttle.
The principles inferentially approved in Barbey & Tuttle at [48] are as follows:
48.His Honour began by stating the rule, and quoted from the case of Clifford & Mountford [2006] FMCAfam 450 as authority for the “usual, but not exclusive considerations” for an application under r 16.05(2)(a) (at paragraph 5):
“34. From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a):
a) The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
b) There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r.16.05(2)(a), namely:
i) a reasonable explanation for the applicant’s absence at the trial or hearing;
ii) material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
iii) no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
b) Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i) Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii) Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii) the conduct of the applicant since the judgment or order sought to be set aside was made.”
Hence I apply the principles as set out at [48] in Barbey & Tuttle on the basis they are entirely applicable to the “new” rule 10.13.
The matter of Barbey & Tuttle at [48] has a further three factors of qualification to those cited in the Father’s outline. Those being whether the applicant has disregarded the opportunity to participate and next, the extent of delay and whether there is prejudice to the successful party and whether it has affected third parties and, thirdly, the conduct of the applicant since the order.
The list of relevant matters should include a fourth one and that is whether or not the party now seeking to set aside the orders waited to see how the orders worked or unravelled for him or her. That is, whether they were able to live with the orders and only complained later on, when they did not like some aspect of the orders made in his or her absence.
In this case there can be no suggestion that the Mother has waited seeing how the orders went and only sought to change them later. It is said that there is a reasonable explanation for the applicant's absence at the hearing. That being her significant mental ill health and I accept that that is a reasonable explanation.
The next aspect is the material argument available to show that there might reasonably be a different order. There is material now available on the Mother's case that would make that out.
And, thirdly, that there is no prejudice to the party that had the benefit of the orders. That prejudice, is not the prejudice of having to have the case heard on the merits but rather that there is prejudice in the circumstances of lost witnesses, lost documents and/or the fading of memory over time. In this case there is no evidence of any special prejudice such as the third point applies.
Barbey & Tuttle also refers to the explanation for the delay and the conduct of the applicant since. In this case the orders were made on 27 April 2018 in the absence of the Mother and I do not have any information or evidence from her as to when she learnt of the final orders. I take into account the very difficult circumstances that she was in when she left Australia on 30 April 2018. She returned on 23 May 2021 and even accepting she only learned of her permanent residence in 2020, I find that is not a sufficient or adequate explanation for delay as would justify setting aside the order under rule 10.13. So the Mother's rule 10.13 application fails on that point.
RESTRAINT ON MOVING TO SYDNEY
Turning then to the issue of the relocation to Sydney the settled reasons will recite a number of references to authorities. This is an interim hearing and I apply the principles of Goode & Goode [2006] FLC ¶93-286 at [82]. I must consider on this interim hearing, Part VII of the Act. There is an existing order for sole parental responsibility that has not been set aside. Hence, the presumption does not arise (see section 61DA of the Act).
I am assisted by the discussion of competing interests where relocation is sought on an interim basis by the Full Court decision of Franklyn & Franklyn [2019] FamCAFC 256 (‘Franklyn’). That is one of the authorities that I have been referred to and I recite paragraphs [26-28] of Franklyn.
[26]Before dealing with these grounds of appeal individually, it is worthwhile recalling the statements of principle proscribing the power to make orders which are, in effect, mandatory injunctions, forcing parents to live in places against their will so as to fulfil the statutory mandate to accord paramount importance to the children's best interests.
[27]There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children's ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent's move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
[28]While the children's interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 ("U v U") at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132]- [136]). Only when the children's welfare would be adversely affected must a parent's right to freedom of mobility defer to the paramount consideration of the children's best interests (see U v U at 262).
The High Court observed at common law individuals may move about as they see fit but that freedom is subject to the laws of the land. Hence, parents enjoy as much freedom to live where they wish as is compatible with their obligations in regard to their child or children: I will refer to the observations of Kirby J at [191] of AMS v AIF (1999) 199 CLR 160:
[191]First, to impose upon a custodial (or residence) parent the obligation to demonstrate "compelling reasons" to justify relocation of that parent's residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate "compelling reasons" imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.
(emphasis added)
At paragraph 14 and 15 of Keavney & Mohlis [2021] FCCA 396 I observed:
14Freedom of movement was recently raised in Gerner v Victoria [2020] HCA 48 (‘Gerner’), a case concerning the validity of the Victorian “lockdown” regulations authorised by Victorian public health legislation. There the High Court dismissed the plaintiff's case that there was an implied freedom of movement in the Australian Constitution. At [10] the High Court observed:
At common law individuals may move about as they see fit. But that freedom is subject to the laws of the land.
15Hence parents enjoy as much freedom to live where they wish as is compatible with their obligations with regard to their child or children and the laws of the land, see Kirby J in AMS v AIF, cited in Franklyn, at [191]. The constitutional law principles discussed in Gerner do not conflict with the principles summarised in Franklyn. In any event I am bound by Franklyn.
In Morgan & Miles (2007) FLC ¶93-343 (‘Morgan & Miles’), Boland J, sitting as the Full Court made some observations about unilateral relocations and interim hearings. I refer to and the settled reasons will recite paragraphs [55], [74-75] and [77] of that decision. Boland J observed:
[55]It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court's discretion in determining a child's best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.
…
[74]The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[75]It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significantly more difficult for that child to spend time with the “left behind” parent.
[77]The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the "left behind" parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
I also refer to Stringer & Nissen (No. 2) (2019) FLC ¶93-922 and the settled reasons will recite [26] where it was observed that the court's function is not fettered by unilateral relocation.
…while it is undoubted that the Court's function is not fettered by a unilateral relocation by a parent, the determination of whether such a move is in a child's best interests involves a careful consideration of all of the factors relevant to that determination (see Morgan & Miles… at [55])
The Father wishes to relocate to Sydney. He is entitled, ordinarily, to live where he wants to live. It is a serious thing that someone should be by court order prevented from living where they want to live. There is no question that I have the jurisdiction to do so. I will in the settled reasons recite [75] from Sampson & Hartnett (No. 10) [2007] FamCA 1365 (‘Sampson & Harnett’) and other authorities applying that decision.
[75]To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
(see [75] of Sampson & Harnett)
…
[37]In Sampson this Court thus made it plain that “[t]he proper exercise of such a power is likely to be rare” and orders made pursuant to an exercise of that discretion would be “…at the extreme end of the discretionary range…” (Sampson at [58] and [83]). It follows that there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make “coercive” orders requiring a parent to relocate so as to continue to be the primary carer of their child/ children (Sampson at [17]).
(see [37] of Adamson & Adamson (2014) FLC ¶93-622)
In Oswald & Karrington (2016) FLC ¶93-726 the Full Court observed:
[16]It may be accepted, as it was in this case, that the Court has power to make a coercive order. Importantly though, it is well established that the proper exercise of that power is “at the extreme end of the discretionary range”4 and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children.5
[17]Consequently, as emphasised by the Full Court in D and SV6 and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
In Wilburn & Wilburn (2020) FLC ¶93-979 at [51] Strickland J sitting as the Full Court observed:
[51]… There remains a clear difference as to how a court addresses a requirement to remain in an area, as opposed to a requirement to actually pack up and move.
Notwithstanding that difference described by Strickland J the long and the short of that is I must look very carefully at the practical circumstances to make sure that it is possible, even on the short term, if I am to effectively prevent someone by court order from living where they want to live. In this case the Father has settled accommodation where he has been living for some time. He says he has not ideal employment in Melbourne, but that is the employment to which he has been applying himself for a number of years now. The child has the benefit of going to a school where she has been attending for some years. Hence, in the immediate and short term there is stability in the Father and child's accommodation. I have looked very carefully at those circumstances.
In all of the circumstances I am concerned with this dilemma. If the Mother's mental health is as well as she says it is it may well be appropriate that a relationship between her and the child resumes. If the Mother's mental health is as well as she says it is it may be that she would be able to manage a relationship with the child by her living in Melbourne with the Father living in Sydney or it may be that she would be able to choose where she does not want to live for the sake of the relationship with the child, and live in Sydney somewhere within reasonable travelling distance of where the Father would live with the child.
On the other hand, if the Mother's mental health is as poor as it was, and the Father says it still is, there is a real fragility to her mental health and I do not know whether the Mother would be able to cope, one, with a relationship with the child and the demands upon her mental health that reinstating such a relationship would impose and secondly, if it was, how her health would survive the issue of her living in Melbourne and the child living in Sydney.
I simply do not know the answers to those questions but when it is determined on an interim or a final hearing I must consider all of Part VII. I will recite in the settled reasons 60CA and 60CC(2) and (2A).
60CA: Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will note the second primary consideration is to be given greater weight than the first, if there is benefit in the relationship to the child of a relationship with her mother. I simply do not know enough, or have enough information as to how the Father's relocation would affect that. Hence, for the time being I do not, in his language, grant him permission to relocate, or in the language of what this is in reality an injunction to restrain him to move, I am going to restrain him until further order from relocating the child's residence.
INTERIM ORDER FOR REINTRODUCTION OF TIME
I then move to the next point relating to the child and that is the question of introducing, at this point, alternate weekend time. Notwithstanding all of the legislative criteria that demand I must look at the benefit to the child of a relationship with her mother and the fact that in the ordinary run of cases it is well known that children benefit from, if not thrive with, if not need, a relationship with both parents. I am simply unable to determine on this interim hearing in the circumstances of the history of the matter whether the Mother's mental health at this point in time is well enough to cope with the stress and difficulty of re-establishing a relationship with the child. It maybe but I do not have sufficient evidence. On the other hand, it may be that the Father is right that the Mother's mental health has not improved. Hence, I will not be ordering the introduction of time at this point.
Neither party has opposed an alternative position of the court getting the assistance of a child impact report and I propose to order a child impact report and to adjourn the Father's application for relocation and the Mother's application to spend time with the child until after I have had the additional information that I will have from a child impact report as well as any additional information that an independent children's lawyer will be able to provide to me.
Further, that will provide the Mother with the opportunity to have a report from her treating psychologist as to her mental health. How she conducts that is a matter for her, but to my mind it would be important that all of the available mental health reports that exist as at this time be provided to her psychologist.
The parties make competing allegations of family violence and I refer to the parts I have set out above. That calls into play the decision of the Full Court in Re K [1994] FamCA 21 (‘Re K’) and, in particular, the first category of Re K. In this case it is asserted that the child has been abused by being exposed to family violence and serious family violence. I do not determine whether that is in fact, true or not, but it is an allegation and it calls for the appointment of an independent children's lawyer so I will make the usual order for an independent children's lawyer.
SUMMARY DISMISSAL OF SECTION 79A APPLICATION
The last matter then remaining is the Father's application to dismiss on a summary dismissal basis the Mother's section 79A application. I will recite section 79A of the Act in the settled reasons:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
…
The Mother puts her case that the circumstances of her mental ill health and homelessness and being unaware of the fact of the hearing and, in any event, the inability to participate in it at that time has been a matter of “any other circumstance” within section 79A(1)(a). I am not going to determine at this point in this case whether or not that is so but I must deal with the application for summary dismissal. I will adopt and repeat the paragraphs at paragraphs 2 through to 6 of the Father’s outline of case as conveniently summarising the law at that point.
2.s46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the “FCFCOA Act”) and the Rule 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) make provision for summary dismissal of an Application. s46 of the FCFCOA Act provides:
(1)The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
3.Rule 10.09 of the Rules also provide a process whereby an application for summary orders may be made by a party claiming in relation to an application or response that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
4.In Spencer v The Commonwealth [2010] HCA 28 the majority observed (at [56]):
“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 evident 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.”
5The majority considered that the phrase “no reasonable prospect” of success should be understood as follows (at [60]):
“Full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”
6.It is conceded that in an application for summary disposal of a claim, the evidence should be taken at its highest, unless inherently incredible or unreliable: Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171; Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 608); Ritter & Ritter and Anor [ 2020] FamCAFC 86 at [66].
The settled reasons will set out the Father's statement of the asset pool:
A Your total average weekly income $E650 B Your total personal expenditure $E876 C Total value of property owned by you $E567,800 D Total gross value of your superannuation $E5,000 E Total of your liabilities $E237,850 F Total of your financial resources $NIL
At [37-38] of Birk & Farwell [2021] FedCFamC2F 234 I set out the preferred approach:
THE PREFERRED APPROACH
[37]In Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 (‘Keskin’) the Full Court, Strickland, Kent & Austin JJ, at [44] approved what was the age old and pre Stanford “preferred approach” as to the how the nuts and bolts of section 79(4), and hence section 90SM, fitted together:
…
[38]That preferred approach set out at [39] of Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143 (‘Hickey’) is as follows (citations omitted):
[39]The case law reveals that there is a preferred approach to the determination of an application pursuant to the provisions of section 79. That approach involves four interrelated steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) & (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) (“the other factors”) including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
I note that on a summary dismissal application, notwithstanding the distancing of the Full Court in Spencer & Commonwealth [2010] HCA 28; 241 CLR 118 from the well-known principles enunciated by Kirby J in Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 that those principles have been adopted by the Full Court (Ainslie-Wallace, Aldridge and Rees JJ) in Ritter & Ritter and Anor (2020) FLC ¶93-957 (‘Ritter & Ritter’).
In the matter of Ritter & Ritter at [48] the Full Court observed that a weak case or the fact of a weak case was not sufficient to have it struck out on a summary dismissal application. At [70] it was considered that it was a failure on a summary dismissal application not to take the applicant’s evidence at its highest. Hence, applying the provisions of the rules and the Federal Circuit and Family Court of Australia Act 2021 (Cth) I am taking the Mother's evidence at its highest. I am not satisfied that there is no reasonable prospect of success or no reasonable prospect of successfully prosecuting a section 79A and property application. The circumstances are that there is a property pool. The Father puts it at this point of being in the order of $330,000 of equity in assets. The parties did cohabit, albeit very unhappily over a period of six or so years and did have a child.
On the Father's case of the Mother having significant ill health, there are significant factors pursuant to section 75(2) that must be taken into account. There is a very significant disparity of assets between the parties and it is asserted a disparity of earning capacity. I note [65] of Barbey & Tuttle:
[65]The High Court in Allesch v Maunz (2000) 203 CLR 172, considered whether the Full Court of this Court had been correct (on a re-exercise of discretion), in exercising the discretion to set aside an order of a Family Court judge made in the absence of a party. The relevant provision in that case (for property proceedings in the Family Court) was s 79A, which enables the Court to set aside an order if satisfied there was a “miscarriage of justice”.
(emphasis added)
Hence, it cannot be said that there is no reasonable prospect of determining that there has been a miscarriage of justice by reason of any other circumstance and that there is no reasonable prospect of upon the order being set aside the mother being able to obtain an order for property settlement.
I do note that it said that this is a small pool and that it can occur that the parent with whom the child is living would receive all of the pool. Whether it is a small, medium or large pool very much depends with what it is being compared with. On one view, the Father has been remarkably successful with some small amount of capital from his parents in purchasing a property and servicing and reducing the mortgage whilst the property has escalated in value so that he now has an equity in the property of more than 10s of 1000s of dollars.
In addition to that he has been able to do that while having the sole responsibility for the care of the child since, it would appear, some time in 2017. Hence, I do not accept that I should have a special rule as a small pool aspect. In the circumstances of a migrant coming to this country and working very hard to crank up a home for himself and his family the Father has been quite successful. The fact that some could point to others who have been more successful than the Father has, or having been born here, are more successful again is not the test. Hence, I find that I am not satisfied that there is no reasonable prospect of the mother successfully prosecuting both aspects of her case.
I will make directions that, absent agreement, the parties join in obtaining a single expert valuation of the property for the purpose of the property proceedings. It cannot seriously be disputed that valuations of a property of the ubiquitous nature of a dwelling in the western suburbs of Melbourne where the dwelling is cannot be valued for a very reasonable sum and frequently I have seen them in for a little less or a little more than $1000. That valuation will be at the equal expense of the parties.
I note that the Father presses in the event that I do not dismiss the Mother's application on Rice & Asplund that there be a psychiatric examination and at this point there is real substance to that application. I would expect in the ordinary course of events that unless there is agreement to rely upon the Mother’s treating psychologist’s assessment (she is not a psychiatrist) that an independent expert psychiatric examination will have to be undertaken by both of the parties and ordinarily that will be at equal expense. They are very expensive and there is quite a delay in getting an appointment. I am not going to make an order about that other than to note it is a sensible, necessary thing and I am hoping that with the assistance of the independent children's lawyer the parties can identify an appropriate expert for that report.
So they are the orders.
It was not sought by either party that in the event that the section 79A application survived the summary dismissal process, there be a bifurcation or a separate hearing of that section 79A application before the property case. That was sensibly so as that would potentially multiply the costs in this case. Hence, unless otherwise ordered the section 79A application will be heard at the same time as the property application. Given the delay in my list we will also insert a date for final hearing of this matter as a three day matter. That is likely to be May 2023 which is a long way off.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 10 March 2022
2
22
0