Collins and Collins

[2008] FamCA 1075

FAMILY COURT OF AUSTRALIA

COLINS & COLLINS [2008] FamCA 1075

FAMILY LAW – PRACTICE AND PROCEDURE – Summary Dismissal – parenting proceedings – applicable principles of law – the Rule in Rice and Asplund – relevant matters

Rice and Asplund (1979) FLC 90-725
Pelerman (2000) FLC 93-037
Bain Pacific Association and Ors v Kelly and Ors (2006) FLC 93-270
SPS v PLS (2008) FLC 93-363
 Miller & Harrington [2008] FamCAFC 150

APPLICANT: Ms Collins

RESPONDENT: Mr Collins

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: SYC 1070 of 2007

DATE DELIVERED: 3 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 3 December 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Craddock Murray Neumann

COUNSEL FOR THE RESPONDENT:	A Rees
SOLICITOR FOR THE RESPONDENT:	John Spence & Associates

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER: C Sperling

Orders

1. That the application for summary dismissal made on behalf of the mother and the independent children’s lawyer is dismissed.

2. That the matter be listed for further directions before a Registrar on a date and time to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym Collins & Collins is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC1070 of 2007

MS COLLINS

Applicant

And

MR COLLINS

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings an oral application is made by the mother and the independent children’s lawyer for an order that the pending substantive parenting proceedings instituted by the father by his Application for Final Orders filed 3 June 2008 be summarily dismissed.

2. The essence of the submissions made on behalf of the mother for summary dismissal is that the rule in Rice v Asplund[1] applies in that the father has not demonstrated substantial, significant, material or a strong change of circumstances that make it proper in the best interests of the two children of the parties for the pending litigation to continue.

   [1]  Rice and Asplund (1979) FLC 90-725 at 78-905

3. In that regard public interest questions are emphasised as well as the background of there having been a lengthy parenting proceedings hearing before O'Ryan J culminating in parenting orders made by him on 16 February 2007 (“the parenting orders”)

4. The father seeks an order that the oral application for summary dismissal be dismissed.

5. In support of the father’s case as revealed in his Affidavit sworn 28 July 2008 (“the father’s affidavit”), it is submitted that in accordance with the rule in Rice v Asplund there is demonstrated a change of circumstances to such a degree that the rule in Rice v Asplund does not represent an obstacle to the substantive proceedings commenced by him being continued.

Historical background

1. The brief relevant historical background to these proceedings is as follows.

2. The two children, the subject of the substantive proceedings, are R, 9 years of age having been born in January 1999 and H, 6 years of age having been born in April 2002 (“the two children”).

3. The two children live with the mother.

4. The father and mother had commenced cohabitation in 1997 and subsequently married on 17 April 2000.  They separated on 18 May 2005.  A certificate of divorce was granted on 3 May 2007.

5. On 16 February 2007 the parenting orders made following a lengthy substantive hearing provided in substance as follows:

   (a)       That the two children live with the mother.

   (b)That the mother have sole parental responsibility for both the long-term and day-to-day care, welfare and development of each child.

   (c)That the father may spend supervised periods of time with the children for two hours each three weeks at a contact centre or service.

6. There then followed a number of machinery orders or other orders which are not relevant to the application before me.

7. The orders sought by the father in his Application for Final Orders filed 3 June 2008 are by way of variation of the orders for supervised periods of time in that he seeks an increase both in length of time and frequency from two hours each three week period to three hours each alternate week.  The father does not seek to vary the order that provided for periods of time to be spent by him with the two children to be supervised at an appropriate contact centre.  Indeed, Order 1 as sought in his application specifies the Contact Centre.

8. The solicitor for the mother, the independent children's lawyer and counsel for the father each provided helpful written outlines of submissions and addressed me further in relation to salient features of those submissions, as well as by reference to recent Full Court judgments in particular which considered the interpretation of the rule in Rice v Asplund[2] and the manner in which it is applied.

   [2] Supra

9. I raised with the parties’ legal representatives the reference to the application of the well established principles for summary dismissal otherwise summarised and stated in some detail in Pelerman[3].  The principles set out in that judgment followed a review of historically leading authorities on summary dismissal and it is appropriate to set out those statements of principle described in that Full Court judgment as follows:

   “The power for summary dismissal is a discretionary one.  Relief is rarely and sparingly provided.  The parties seeking summary dismissal must show that the application is doomed to fail or has been otherwise described that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.”

   [3] Pelerman (2000) FLC 93,037 at 87,582

10. I add the comment that in these proceedings neither the solicitor for the mother nor the independent children's lawyer submitted that the proceedings were, “clearly frivolous or vexatious”:

    “A weak case or one that is unlikely to succeed is not sufficient to warrant termination.  If there is a serious legal question to be determined it should ordinarily be determined at a trial.”[4]

    [4] Supra

11. I also observed that in the proceedings before me a “serious legal question” does not arise or, at least I have not been referred to such a question in the submissions made to me today.

    “If not withstanding 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 the Court will ordinarily allow that party to re-frame its pleadings.”[5]

    [5] Supra

12. That particular principle is not relevant to the application before me.

13. I accept the submission that those principles do not distinguish between cases involving financial matters as opposed to parenting proceedings or, indeed the reverse that those principles do not provide any emphasis on the special category of cases involving parenting proceedings.  The Full Court's judgment in Pelerman was subsequently followed in Bain Pacific Association and Ors v Kelly and Ors.[6]

    [6] Bain Pacific Association and Ors v Kelly and Ors (2006) FLC 93-270

14. The substantive proceedings as I have already referred to are proceedings in which parenting orders are sought.  The view that I expressed to the legal representatives for the parties which did not attract a different submission is that the principles in relation to the summary dismissal walk hand in hand with the rule in Rice v Asplund.

15. Rice v Asplund is a decision of the Full Court in which the Reasons for Judgment given by the former Chief Justice, Evatt J are relevantly in the following terms:

    “A Court 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 to quote Barber J that 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.”

16. It is well established that an application before a Court invoking the rule in Rice v Asplund may be made as a preliminary application or alternatively during or at the conclusion of a full hearing.  As is apparent, the application before me is made before a substantive hearing has taken place.  There are a number of judgments both at first instance and of the Full Court which categorise or interpret the rule in Rice v Asplund as one which is such that the reference to changed circumstance must be one where it is persuasive of the Court that the changed circumstance is a significant, material, substantial or strong.

17. There has been a helpful analysis of the rule and its application in a recent judgment of Warnick J sitting as a member of the Full Court in SPS v PLS, judgment having been given on 28 February 2008.[7]  In the course of his Honour’s judgment he provides an analysis of the circumstances in which the rule may apply and with respect I follow that approach.

    [7] SPS v PLS (2008) FLC 93-363

18. Amongst the matters to be considered includes a reference to the proposition that at whatever stage of a hearing the rule is applied, its application should remain a manifestation of the best interest principle.  The application of the rule is closely connected with the nature of, and the degree of change sought to the earlier order and any application of the rule must measure the evidence against the principles set out in Part VII of the Act. 

19. In addition, in terms of what is inferentially the public interest question of the impact upon parties and particularly children of constant rounds of litigation his Honour deals with that matter in paragraphs 57 and 58.  That inferentially refers to the public interest issue and is stated as follows:

    “This evil, by reference to what had been described earlier as a perennial football match between parents, is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.”[8]

    [8] ibid at 82,452

20. The difficulty I face is that I am not in a position to make such a finding on the material before me.  Rather, I propose to take the approach set out in the well established principles for summary dismissal which is to consider the evidence of the father before me in these substantive proceedings as one which is doomed to failure or, is otherwise a weak case but not sufficient to warrant dismissal.  That, of course, has to be seen in the context of the rule in Rice v Asplund.

21. Consequently, the approach that I take in these proceedings having regard to the limited evidence before me is not that there has been a change of circumstances sufficient to justify that result, but rather that there may be sufficient circumstances to justify a variation of the orders as sought for the father.  The reason is that I only have the evidence that he has provided limited to the father’s affidavit which clearly from its terms does not adduce evidence which may potentially be given in relation to all of the relevant considerations pursuant to ss60CC(2) and (3).

22. Turning then to the evidence in these proceedings against the background of the orders sought by the father which clearly do not seek to disturb the orders made on 16 February 2007 in relation to parental responsibility, nor with respect to the parent with whom the children should live.  They are simply limited to a variation of the periods of time and the frequency of such periods of supervised periods that the father may spend with the two children.  The father’s affidavit recites the periods of time that he has spent with the two children in accordance with the orders, the variation to those periods, the reaction of the two children on those occasions and the circumstances in which they have taken place involving other members of the extended family.

23. The question that then arises is, does that material represent, together with any other relevant material, a change of circumstances and if so a change to the degree which has been described in a number of judgments as being sufficient, significant, material or strong for the purpose of enabling the pending application not to be defeated by the rule in Rice v Asplund, bearing in mind that in terms of summary dismissal principles in general, I am required to be persuaded that for the purpose of a summary dismissal application succeeding, the case for the father is “doomed to failure” and is not merely “weak”.

Conclusion

1. I have concluded that the application for summary dismissal will be dismissed for the following reasons.

2. The evidence adduced for the father at this stage being a preliminary stage of the litigation, in my view, does not demonstrate an application that is doomed to failure, albeit that on one view of it, it may be weak.

3. The change of circumstances that have occurred are as follows.

4. Well over one and a half years have lapsed since the orders were made.  That period of time in the life of the two young children may well be regarded as being significant.  The two children are now at an age when their reactions to periods of time to be spent with the father may be gauged at a higher level than that which might have applied in 2006 when the previous substantive hearing took place.

5. There have been changes to the regime of periods of time that the two children have spent with the father in that at various points, there has been an increase in the frequency.  I accept the submission made on behalf of the independent children's lawyer that the views expressed by the two children appear to be limited in points of time and so far as 2008 is concerned, there is only evidence of one expression of a view.  However, there are other matters apart from those views which are expressed in positive terms.  There has been the evidence of the two children having reacted positively to the periods of time that they have spent with the father.  There is evidence of them seeking to spend greater periods of time.  There is also evidence of them having enjoyed those periods with not only the father but members of the extended family who live in the Central Coast area.

6. The evidence in that regard suggests that the limitation in terms of the period of time does not enable a fuller interactive experience for the two children given the restriction of there being one two hour visit every three weeks.  In accordance with the authorities to which I was helpfully referred which include SBS v PLS and also Miller and Harrington[9], I have to also consider the proceedings and the evidence adduced so far in terms of the legislative requirements.

   [9] Miller & Harrington (2008) FamCAFC 150

7. As a consequence of the amendments to the Act which came into force on 1 July 2006 one of the two primary considerations for the purpose of determining the best interests of the child set out in s.60CC(2) is the benefit to a child of a meaningful relationship with the child’s parents.  In the light of that legislative amendment and given the positive evidence of changes to which I have referred, it may well be for the benefit of the two children that a meaningful relationship may reflect the orders as sought by the father in his application.

8. On the material before me there is no evidence to suggest that increased periods of time and increased frequency of supervised periods of time will in any way detract from the benefit to the two children of a meaningful relationship with the children's mother.  I hasten to emphasise that I am not determining the merits of the substantive proceedings.  In the event of the parties being unable to settle this litigation, the trial Judge who will be required to determine the proceedings may conclude that the application of the father should be dismissed.  I am merely reviewing the evidence, such as it is, in order to glean from it whether there has been a change of circumstances to such a degree that the rule in Rice v Asplund does not represent an obstacle to the continuation of the litigation.

9. Given the findings that I have made about change of circumstances, I have concluded that the application of the father is not doomed to fail, albeit that it may be weak.  I have considered those principles having regard to the rule in Rice v Asplund, the manner in which it has been interpreted and the application of it to the evidence before me in these proceedings.

10. Consequently, the application for summary dismissal made on behalf of the mother and the independent children's lawyer is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  9 December 2008