Dalton & Nagle
[2021] FamCA 376
•8 June 2021
FAMILY COURT OF AUSTRALIA
Dalton & Nagle [2021] FamCA 376
File number(s): SYC 2434 of 2018 Judgment of: HENDERSON J Date of judgment: 8 June 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary dismissal – Where there is no evidence of the parties’ financial relationship before the Court – Discussion of principles applying to applications for summary dismissal – Where the mother’s case in relation to property, taken at its highest, did not raise an issue that a court would be required to determine under section 90SM of the Family Law Act 1975 (Cth) – Where parenting proceedings have been determined in New Zealand – Where the mother continues to actively participate in parenting proceedings in New Zealand through the filing of applications – Property application summarily dismissed – Interim parenting application dismissed as an abuse of process. Legislation: Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) ss 44(5), 45A, 90SF(3), 90SE, 90SM
Family Law Rules 2004 rr 1.12, 5.01, 10.12
Trans-Tasman Proceedings Act 2010 (Cth)
Cases cited: Beck & Beck (2004) FLC 93-181
Bigg v Suzi (1998) FLC 92-799
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Cleary v Jeans [2006] NSWCA 9
Five D v Impact Building [2007] NSWSC 993
Friar & Friar [2011] FamCAFC 71
Lindon v The Commonwealth of Australia (No 2) (1996) 136 ALR 251
Pelerman v Pelerman (2000) FLC 93-037
Ritter & Ritter and Anor (2020) FLC 93-957
Secretary of State of Trade and Industry v Bairstow [2004] 4 All ER 325
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507
Judge Peter Boshier, “Developing Family Relationships” (2010) 16 Canterbury Law Review 127
Number of paragraphs: 146 Date of hearing: 28 April 2021 Place: Sydney The Applicant Litigant in person Counsel for the Respondent: Mr Djurdjevic Solicitor for the Respondent: Coleman Greig Lawyers ORDERS
SYC 2434 of 2018 BETWEEN: MS DALTON
ApplicantAND: MR NAGLE
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
8 JUNE 2021
THE COURT ORDERS THAT:
1.The mother’s Initiating Application filed 18 April 2018, First Amended Initiating Application filed 22 November 2018 and Second Amended Initiating Application filed 31 January 2020 are dismissed.
2.The mother’s Applications in a Case filed 6 June 2018, 3 April 2019, 11 October 2019 and 17 November 2020 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalton & Nagle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is an application by Mr Nagle (“the father”) to summarily dismiss outstanding property applications filed by Ms Dalton (“the mother”), being an Amended Initiating Application filed in this Court on 22 November 2018 and a Second Amended Initiating Application filed 31 January 2020. The application of 22 November 2018 was stayed, by consent, in July 2019 pending finalisation of proceedings New Zealand concerning the children and I stayed all outstanding applications in April 2020.
The mother has filed an Initiating Application seeking parenting orders on 18 April 2018, an Amended Initiating Application on 22 November 2018 joining property, and a Second Amended Initiating Application on 31 January 2020 seeking orders that the father provide full and frank disclosure, that a property settlement be effected between the parties, that the father pay the mother $450 per week by way of spousal maintenance, a child support order seeking backdated child support and abandoning her application for final parenting orders.
On 17 November 2020 the mother filed an Application in a Case seeking various financial orders and an order that her children, X and Y, immediately return home to Australia in accordance with their rights under the United Nations Convention of Children's Rights 1989.
The mother has also filed three further Applications in a Case:
(1)On 6 June 2018 seeking parenting orders, an order for a superannuation split and $360,000 by way of property settlement;
(2)On 3 April 2019 requesting the matter be re-listed on an urgent basis and for the final hearing to be expedited; and
(3)On 11 October 2019 requesting the matter be transferred from Sydney to Canberra.
I indicated I would deal with the application for summary dismissal under section 45A of the Family Law Act 1975 (Cth) (“the Act”) in respect of all the outstanding applications after advising the mother I could, of my own motion, determine to deal with an application under section 45A and did not need a party to make such an application necessarily and the mother did not object to this course. The mother was self-represented. The husband was represented by Mr Djurdjevic of counsel.
The material I read for the parties was as follows.
For the father:
(1)A very helpful case outline prepared by his counsel;
(2)Affidavit of the father filed 18 January 2021;
(3)Response of the father filed 6 June 2018;
(4)Tender bundle of the father containing his proposed minute of order, the mother’s Initiating Application filed 18 April 2018, her Amended Initiating Application filed 22 November 2018 and her Second Amended Initiating Application filed 31 January 2020 together with the affidavits the mother has filed in the proceedings.
The remainder of the material the mother relied upon.
The father was of the view that when the mother initially filed for property proceedings in this Court in 2018, she had not filed a Financial Statement. However, investigative work by my associates revealed that the mother had filed a Financial Statement on 18 April 2018, an affidavit on 23 May 2018 and two affidavits on 6 June 2018 and these documents were also read.
The mother's material was a little difficult to follow, however she relied upon:
(1)Her Initiating Applications filed 18 April 2018, 22 November 2018 and 31 January 2020;
(2)Application in a Case filed 17 November 2020;
(3)Notice of Child Abuse, Family Violence or Risk, filed in this Court on 26 February 2021;
(4)Affidavit of the mother filed 18 January 2021;
(5)Her supplementary bundle;
(6)Submissions for the High Court appeal of final orders, heard in New Zealand;
(7)Justice Powell’s dismissal of her appeal against the final orders;
(8)Her affidavit, not filed, of 19 April 2021;
(9)The risk assessment dated 19 April 2021;
(10)A document filed in the New Zealand proceedings together with a Notice of Child Abuse, Family Violence or Risk filed in the Australian proceedings on 26 February 2021;
(11)Judge Mahon’s reserved decision dated in March 2021;
(12)The mother’s habeas corpus application of 19 April 2021;
(13)Letters from the equivalent of the Department of Communities and Justice in New Zealand dated November 2020;
(14)Her various complaints, letters, emails, documents and affidavits relating to what she regards as ongoing abuse and ill treatment by the father of her children;
(15)The father’s affidavit filed in the Australian court.
The new material filed by the mother dealt with parenting matters and did not provide any evidence in relation to property, spouse maintenance or child support.
When this reality became apparent to the mother she asked that I adjourn the matter and give her leave to file further evidence in relation to property and child support. I refused that application for the following.
This summary dismissal application has now been listed since January 2021 for hearing on 28 April 2021. On 21 January 2021, when listing the matter for hearing, I alerted the wife to the lack of evidence to support her application for property as I had when this matter was before me on 27 November 2020. I alerted the mother to the deficits in her case orally and by my notations of 27 November 2020 and 21 January 2021.
On 27 November 2020 I noted:
1.There are no pleadings in relation to property before this Court.
2.Parenting proceedings have been decided to finality in the Family Court in New Zealand.
3.The mother’s appeal against the parenting orders was unsuccessful.
21 January 2021:
A. The mother[’s] appeal to the Court of Appeal in New Zealand was unsuccessful.
B. The proceedings in New Zealand have not been finalised as the mother has further appealed to the High Court in New Zealand
Further, on 21 January 2021 I made an order that “[o]n or before 4pm on 19 April 2021, the wife file and serve a Response together with an Affidavit in support of the Orders sought”.
In November 2020 the parenting proceedings had been decided to finality in the Family Court in New Zealand and the mother's appeal to the Appeal Court in New Zealand had been heard and was unsuccessful.
The mother was made aware in November 2020 that her evidence to support the Court entertaining a property application was non-existent and the mother was given an opportunity to rectify this by filing evidence.
By the mention in January 2021 the mother had filed an additional affidavit on 18 January 2021 which did not provide any evidence to support the mother’s application for property orders, spouse maintenance or child support rather dealt with parenting issues, and I listed the matter for a summary dismissal hearing in April 2021, again alerting the mother to the need to file evidence to support her application for property orders, spouse maintenance orders and child support and making directions for her to do so.
The new material filed by the mother for the 21 April 2021 hearing was as follows:
(1)A Notice of Child Abuse, Family Violence or Risk, filed in this Court on 26 February 2021;
(2)Affidavit of the mother filed 18 January 2021;
(3)Her supplementary bundle;
(4)Submissions for the High Court appeal of final orders, heard in New Zealand;
(5)Justice Powell’s dismissal of her appeal against the final orders;
(6)The mother’s affidavit, not filed, of 19 April 2021;
(7)A risk assessment dated 19 April 2021;
(8)A document filed in the New Zealand proceedings together with a Notice of Child Abuse, Family Violence or Risk filed in the Australian proceedings on 26 February 2021;
(9)Judge Mahon’s reserved decision dated in March 2021;
(10)The mother’s habeas corpus application of 19 April 2021;
(11)Letters from the equivalent of the Department of Communities and Justice in New Zealand dated November 2020;
(12)Her various complaints, letters, emails, documents and affidavits relating to what she regards as ongoing abuse and ill treatment by the father of her children;
(13)The father’s affidavit filed in the Australian court.
I note that by the time of the hearing in April 2021 the mother’s Appeal to the High Court had also been dismissed.
The father was ready to proceed on his application and the mother had been given ample opportunity to file evidence to support her application for property orders, spouse maintenance and child support and had not done so despite having filed fresh material. Her fresh material was silent in relation to any aspect of her claim for property settlement, orders for backdated child support or spouse maintenance. Her material was focused on the children and parenting issues. I formed the view that merely because she came to realise her material may be deficient at the hearing was not a reason to grant an adjournment and on these facts I refused to do so.
The mother has participated in parenting proceedings in New Zealand where the children and father live and these proceedings were dealt with to finality save she was granted leave by Judge Mahon of the New Zealand appeal court to re-open the parenting matter on the limited issue of her time with the children and this limited issues hearing is listed in mid-2021.
Judge Mahon specifically stated at paragraph 63 of his judgment, which paragraph will follow, the limited re-hearing did not include her application to re-locate the children to Australia to live with her. The mother has additional applications listed for hearing in New Zealand touching on parenting issues to which I will later refer.
In August 2020, a judge of the Family Court of New Zealand, Judge Adams, made final orders that the children were to live in a shared care arrangement in New Zealand. The parties were to have what we would call “equal shared parental responsibility”, and made orders in relation to the children not being removed from New Zealand.
The mother appealed that decision. The appeal division of the Family Court of New Zealand was constituted by Judge Mahon.
Judge Mahon, in a decision he delivered in March 2021, gave the mother leave to proceed with her application for variation of the final orders granted by Judge Adams in August 2020 on a limited basis as set out at paragraph 59 of his Honour's judgment:
The numerous grounds raised by Ms Dalton do not justify further Court intervention to substantially change the parenting arrangements directed under the final order, as what Ms Dalton raises continue to be either:
(a) A repetition of concerns raised by Ms Dalton and addressed in the hearing last August; and
(b) Further allegations in respect of the effect of Mr Nagle’s parenting of the children since the final order which do not meet the threshold of material change in circumstances.
[60]. However, recent evidence and developments for the children concerns me, not for the reasons advanced by Ms Dalton but because:
(a) Ms Dalton’s behaviour shows the same pattern which so concerned psychologist and Judge Adams last year. Ms Dalton continues to challenge any person in authority, Mr Nagle or his mother for an actions taken by any of these people with which she does not agree.
(b) The difference since the hearing is that the children are now living in the shared care of their parents whereas they were living in their father’s day-to-day care and had very limited contact with their mother last August.
(c) Judge Adams made a predictive assessment based on the recommendations of the psychologist and his assessment of the parties when taking the ‘leap of faith’ to radically change the parenting routine which had been in place for some time when he heard the case.
(d) The children’s direct involvement Ms Dalton refers to is her own conversations with the children, which she claims show how unhappy even afraid they are in their father’s care. However, the children raise no such concerns in either discussions with their lawyer or in interviews with Oranga Tamariki.
(e) The children’s involvement in the conflict between their parents has significantly increased since they resumed substantial unsupervised care with their mother and example[s] of the extent of their involvement are:
(i) The letters Ms Dalton has arranged for the children to write in these proceedings and in Ms Dalton’s application for a final protection order. In the letters both X and Y expressed concern, even fear about being in the unsupervised care of their father yet the expressed no such concern when recently talking to their lawyer or Oranga Tamariki social workers.
(ii) Ms Dalton’s decision to video a discussion she had with them about their father.
Paragraph 61:
These concerns together show a material change in circumstances to those presenting at the time of the hearing last year. The children were not then in the shared care of their parents, rather the sole care of their father with limited supervised contact with their mother and periods of no contact.
…
[63] Leave is granted solely in respect of the application to vary the parenting order. The guardianship directions made by Judge Adam’s declining Ms Dalton’s application to relocate to live with the children in Australia are not the subject of the leave and will not be reviewed by this Court unless direction to do so by the High Court in its judgment on Ms Dalton’s appeal.
The mother then appealed the decision of Judge Mahon to the High Court of New Zealand. The decision of Justice Powell of the High Court was delivered in March 2021, wherein he confirmed the dismissal of the mother's appeal against Judge Adams' decision and dismissed her appeal in its entirety including her application to re-locate and live with the children in Australia.
The mother told me that she has six applications on foot in New Zealand currently, all related in some way to the children. That she has a hearing in relation to the specific leave granted by Judge Mahon in his decision of March 2021, and that matter is listed for hearing in 2021.
That she has sought leave to appeal in the Supreme Court of New Zealand from the High Court’s dismissal of her appeal in March on the basis of a writ of habeas corpus based upon her assertion that her children are being unlawfully detained in New Zealand by the decision of Judge Adams not permitting them to be taken out of the country, and that a writ of habeas corpus should issue to release them from this detainment. The mother is awaiting a hearing date in relation to that particular matter.
The mother has a hearing in relation to an application filed in March 2021, seeking to appeal against a decision that she be placed on a bond when she had failed to return the children to their father's care earlier in 2020 or 2019.
There is a hearing in relation to the temporary protection order she seeks in relation to herself and the children based on what she says is poor behaviour of the father and paternal grandmother. That matter is listed for hearing in June 2021.
The mother has sued the Law Society of New Zealand in relation to what she regards as the unprofessional, biased and otherwise improper actions of what we would call the “Independent Children's Lawyer” in the hearing before Judge Adams and is awaiting a hearing date on that application.
The mother has launched a civil claim against the New Zealand police as she asserts they unlawfully arrested her when they executed an arrest warrant to have the children returned to the father's care, pursuant to him making what we would call in a “recovery order application” in the New Zealand courts in early 2020.
The mother has no final application seeking parenting orders on foot in this Court as upon filing her Second Amended Initiating Application, on 31 January 2020, she abandoned the parenting orders sought in April 2018 in this jurisdiction and this was the correct course as proceedings were ongoing in New Zealand. The mother has participated in parenting proceedings in New Zealand and has invoked the jurisdiction of New Zealand over the last three years.
APPLICATIONS AND ORDERS SOUGHT BY THE MOTHER
The orders sought in the mother’s Initiating Application filed 18 April 2018 were as follows:
1.That the children, X born … 2012, and Y born … 2014, live with the mother in Australia.
2.That the children spend time with and communicate with the father as agreed between the parties.
3.That the father is restrained from removing the children from the Commonwealth of Australia without authenticated written consent of the mother.
4.That the father pay the mother outstanding child support arrears plus interest.
The orders she sought in the First Amended Initiating Application filed 22 November 2018 were as follows:
1.That the children X born in 2012, and Y, born in 2014, live with the mother in Australia.
2.That the children spend time with and communicate with the father as agreed between the parties.
3.That the father is restrained from removing the children from the Commonwealth of Australia without authenticated written consent of the mother.
4.That the father pay the mother outstanding child support arrears plus interest.
5.That Property Settlement orders be made by the Court.
(Emphasis in original)
The orders sought in the Second Amended Initiating Application filed 31 January 2020 were as follows:
1.That pursuant to Rule 13.04 the Respondent provide full and frank financial disclosure.
2.That a property settlement be effected between the parties as deemed appropriate by this Honourable Court.
3.That the Respondent pay to the Applicant $450 per week by way of spouse maintenance.
4.That the Applicant have leave to amend this Application following receipt of the Respondent’s financial disclosure documents in Order 1 above.
5.That the court accept for filing child support documents outlining child support estimates for Mr Nagle regarding his only child “Y” born … 2014. Marked “Annexure B”…
6.That the respondent provide proof of any maintenance payments made to the applicant from May 2014-January 2018.
“Annexure B” the mother referred to in this Second Amended Initiating Application was not produced by the mother at the hearing nor could it be found on the court file.
The mother has also filed four Applications in a Case:
(1)On 6 June 2018 seeking parenting orders, an order for a superannuation split and $360,000 by way of property settlement;
(2)On 3 April 2019 requesting the matter be re-listed on an urgent basis and for the final hearing to be expedited;
(3)On 11 October 2019 requesting the matter be transferred from Sydney to Canberra; and
(4)On 17 November 2020 as follows:
1.I seek the relisting of the matter before the court to finalise financial settlement.
2.I seek the Australian Courts exercise jurisdiction to review and reppeal [sic] the final orders made in New Zealand as New Zealand has proven not to be a competent jurisdiction.
3.I seek the Australia Courts request the N.O.E and Bundles of evidence present at the final hearing 18-21 August containing substantial perjury by Mr Nagle.
4.I seek the Courts order to have X and Y immediately returned home to Australia in accordance with their rights [under the] United Nations Convention of Children’s Rights 1989.
I had, on 28 April 2020, stayed all outstanding applications pending the New Zealand Family Law proceedings being completed which they will have been so come May 2021.
Filed with her Initiating Application of 18 April 2018 was large affidavit in which she enclosed Apprehended Violence Orders made in New Zealand, orders that she could not remove the children from New Zealand, emails she and the father had sent between them, affidavits and documents filed by the father in the proceedings in New Zealand, birth certificates of the children. Attached to her Financial Statement filed at the same time was a notice of income tax assessment dated June 2017 showing that her taxable income was $26,987 in Australia at that time.
The mother’s Financial Statement filed 18 April 2018 disclosed her average income was $550 a week, she owned $15,800 in property, had $14,000 in superannuation, and liabilities approaching $30,000. I am unaware of her current financial circumstances. I note the father’s financial circumstances are set out in his affidavit of 18 January 2021 at paragraph 14 where he says he has $2,000 in the bank in Australia, no superannuation in Australia and no liabilities in Australia. His affidavit is silent as to his assets in New Zealand.
In the mother’s affidavit of 18 April 2018, she attached what she called “Exhibit A”, being an affidavit she filed in Hague Convention proceedings she had commenced in New Zealand.
The mother sought orders by way of addendum to her Financial Statement filed on 18 April 2018 as follows:
I think it's reasonable to seek:
1. Backpay for child support 01/08/2013 – CURRENT DATE
2. A percentage of Mr Nagle’s wage while I have been a stay at home mum. Having my income significantly reduced.
3. Compensation for emotional distress due to Mr Nagle’s retention of my children and abduction with associate psychological harm for them and me.
(As per the original)
At the time she foreshowed this application in 2018 the children were living with their father in New Zealand, pursuant to orders made by the relevant New Zealand court. No documents in relation to child support such as an assessment, notice of assessment, notification of arrears of child support or any other relevant child support document were filed with the affidavit supporting her Initiating Application.
SHORT CHRONOLOGY
The relevant facts are as follows.
The father returned to New Zealand in 2016 when the children were aged two and four.
The children remained in the care of their mother, the parties had a cooperative parenting arrangement and the children spent time with the father in New Zealand.
The mother and her children, X and Y, flew to New Zealand on 16 January 2018 ostensibly to enable the children to spend time with the father. X is not the father’s biological child but has lived with the father for almost all his life.
The mother left New Zealand without the children on 17 January 2018 for a holiday to South America and was due to return on 17 February 2018. The mother had initially asked the father to look after the children between 16 January 2018 and 7 February 2018 whilst she holidayed. Ultimately she asked another friend, Ms B, to care for the children and when the father became aware of these changed plans he commenced proceedings in New Zealand ex-parte seeking to have the children live with him which application was denied.
Upon the mother’s return to New Zealand the parties’ relationship deteriorated and ultimately a court made orders that the children live with the father, spend time with the mother and they not be removed from New Zealand.
The mother appealed/disputed this decision and the New Zealand proceedings commenced in earnest.
The mother said she wanted the children home in Australia by 19 February 2018 and told the father this. In support of her argument that the children were always meant to return to Australia with her in February she had purchased a one-way return ticket for them when she initially arrived in New Zealand. Her position was that she intended to collect the children from his care on 17 February 2018, and return to Australia on 19 February 2018. The fact is the children have not left New Zealand since that time.
Prior to travelling to New Zealand with the children and then on to South America on her own, the mother was in a long-term relationship with Mr C who lived in the Northern Territory. The mother, Mr C and the children lived in a three-bedroom apartment and the children had been living in that arrangement since November 2016.
At paragraph 24.2 of her affidavit filed 6 June 2018, the mother tells the Court she was owed approximately $40,000 in child support from the father however failed to provide any document to support this assertion, rather merely saying that she was seeking:
Legalising child support and back pay (estimated at around $40,000) for the three and a half years that I have cared for our daughter, Y, … /… /2014, with zero financial support from Mr Nagle.
In her second affidavit of 6 June 2018, the larger of the two affidavits, at paragraph 14 of the annexure marked “G”:
Although child support [w]as set up for [Y] … / … /2014 Mr Nagle has never paid any child support directly to me, or anyone else to my knowledge.
There is no evidence in the mother's material at all of any child support application, assessment of child support, review of a decision or an appeal from a decision, or any correspondence between she and the agency or anyone else about child support.
In relation to the property application of the mother generally, her various affidavits are silent as to the assets the parties had at the commencement of their relationship, assets they acquired during the relationship, assets in existence at the cessation of the relationship, including superannuation, their financial history and relationship such as holding of joint accounts, who or how they paid for rent, food and utilities. There is no financial material pleaded to assist the Court to understand the most basic of facts to begin the process of assessing the parties’ entitlement, if any, to their property as there is no evidence at all of their property prior to their relationship, during the relationship, or at separation or any evidence of either parties’ sole or joint financial history.
This is particularly relevant to de-facto property matters where certain hurdles must be overcome before a court can exercise jurisdiction, such as in which state did the parties substantially conduct their de-facto relationship. Such evidence is absent in her material.
Dealing with the child support issues raised. The best evidence I have is the mother's assertions, such as her assertion at the hearing that she filed with the Court 40 letters from the child support agency in support of her child support application for lump sum, backdated child support and/or arrears of child support going back to 2013. Yet in her affidavit none of that material appears, nor could it be found on the court file and nor did she have any material to provide to the Court at the hearing despite that being one of the orders she sought and has sought since 2018.
There is simply no evidence pleaded by the mother to enable the Court to exercise its jurisdiction to deal with a child support issue or to determine on what basis the Court could make the orders sought for lump sum, backdated child maintenance or be able to assess arrears of child support, if any.
Similarly in relation to her application for property orders, there is simply no evidence pleaded by the mother to enable the Court determine on what basis the Court could make the orders sought, to use her words, for a “property settlement…as deemed appropriate” pursuant to section 90SM of the Act.
The mother’s property case has a further flaw.
Orders for property were sought by the mother in her First Amended Initiating Application, filed on the 22nd of November 2018. This application had been stayed in July 2019.
The mother had initially filed an application for parenting orders and child support arrears in April 2018.
On 6 June 2018 the mother sought orders for a superannuation split and $360,000 by way of property settlement in an Application in a Case filed on that date.
Her First Amended Initiating Application joined property on 22 November 2018.
The mother had filed an Application in a Case on 6 June 2018 seeking, at order 5, “That the court order a property settlement between the mother and father inclusive of a superannuation fund split and payment to the mother of $360,000 in total” amongst other orders relating to parenting including for the children to live with the mother, for the children to spend time and communicate with the father by agreement, and that the father be restrained from removing the children from the Commonwealth of Australia.
Rule 5.01(1) of the Family Law Rules 2004 (“the Rules”) states that:
A party may apply for an interim, procedural, ancillary or other incidental order in relation to a cause of cation only if:
(a)the party has made an application for final orders in that cause of action; and
(b)final orders have not been made on that application.
At the time of filing her 6 June 2018 Application in a Case the mother had no final application on foot for a superannuation splitting order. I am able to dispense with the requirements of this rule should I deem that appropriate in all the circumstances.
A Second Amended Initiating Application was filed on 31 January 2020 wherein she abandoned parenting orders by way of physically crossing out the handwritten orders initially put in the application and sought only property orders, spousal maintenance and “[t]hat the court accept for filing child support documents outlining child support estimates for Mr Nagle regarding his only child ‘Y”. No documents were produced by the mother in relation to child support.
The parties were in a de facto relationship which, on the mother’s material, commenced in 2012.
The date of separation pleaded by the mother in her initial application filed on 18 April 2018 was 1 August 2013 with co-habitation commencing on 23 November in 2012, being less than 12 months of co-habitation. The First Amended Initiating Application joining property was filed on 22 November 2018. The mother’s application for property orders is three years out of time, see section 44(5) of the Act which provides such applications must be filed within two years of the date of separation and the mother must seek leave to commence property proceedings out of time and she has not done so.
From a careful reading of the Initiating Application filed on 18 April 2018, in the box where the date separation is written as 1 August 2013, this date appears to have been overwritten over a date of 1 June 2016. Even if the date of separation be June 2016, the mother's Amended Initiating Application filed 22 November 2018 joining property is still out of time and leave must be sought to commence proceedings as too would her Application in a Case filed 6 June 2018.
The mother has not sought leave to proceed with her First Amended Initiating Application. Without such leave being granted this Court does not have jurisdiction to entertain an application in respect of the property aspect of the breakdown of a de facto relationship.
THE RELEVANT LEGISLATION AND THE LAW
The power to summarily dismiss an application is contained in section 45A(1) and (2) of the Act. Section 45A(1) of the Act is concerned with no reasonable prospect of successfully defending proceedings which is not relevant here. The relevant section is 45A(2) which is as follows:
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
In so doing I must consider subsection (3) of section 45A of the Act which is as follows:
(3) For the purposes of this section a defence, or proceedings or part of proceedings need not be;
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
In addition to the summary dismissal power, section 45A(4) of the Act gives the court power to dismiss proceedings that are frivolous, vexatious or an abuse of process and that section is as follows:
The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
Further, subsection (7) of section 45A of the Act permits the Court to take action under this section on its own initiative.
Rule 10.12 of the Family Law Rules 2004 provides the following:
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:
(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.
The law in relation to summary dismissal applications is well settled and such applications are, properly, notoriously difficult to succeed given the consequences of the decision. There are many decisions in this area and I have been referred to them by counsel for the father and the following two decisions are of central importance to me.
The first is the decision of the Full Court of Friar & Friar [2011] FamCAFC 71 (“Friar”), in which their Honours allowed an appeal of a decision by a Family Court Judge to dismiss a wife’s claim for property adjustment on a summary basis.
Justice Finn set out the relevant principles, beginning with the following preamble at paragraph 8:
Similarly, no issue is raised on the appeal regarding his Honour’s acceptance (as opposed to application) of the following principles as the principles to be applied in the determination of applications for summary dismissal, and as those principles were articulated in the submissions of Counsel for the husband’s sister, citing Beck and Beck (2004) FLC 93-181:…
Reciting Beck & Beck (2004) FLC 93-181 (Beck & Beck), and referring to Bigg v Suzi (1998) FLC 92-799 and Pelerman v Pelerman (2000) FLC 93-037 her Honour set out the relevant principles as follows:
“(a) The power for summary dismissal is a discretionary one.
(b) Relief “is rarely and sparingly provided”.
(c) The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d) A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e) “If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.
(f)“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 pleadings”.’
In determining an application of this nature … the rule … is that if a version of the facts put forward by the respondent is not inherently incredible, then in the absence of any opportunity for cross-examination it is incumbent upon the court to proceed on the basis that the respondent's version will ultimately be accepted at the trial of the action (see Webster v Lampard (1993) 177 CLR 598 at 608).”
Citing paragraph 20 of Beck & Beck:
Further support for the proposition that an application for summary dismissal must be determined on the basis only of the material put forward by the respondent (to that application) is to be found in the passage from the judgment of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 (which was quoted by the Full Court in its judgment in Bigg v Suzi) where his Honour said:
"... 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 (Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.)”
Her Honour’s finding was that the wife’s application for relief, being a declaration under section 78 of the Act of an interest in property, should not have been summarily dismissed as the case that she was putting forward in relation to equitable relief was founded on an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff.
The test is whether there is an arguable issue for a court to determine. In Friar, their Honours found there was such a case. As Justice Finn said at paragraph 20:
It must be emphasised that the wife’s case against the husband’s sister may ultimately not succeed, but it should be permitted to proceed to trial to establish if her claim to some form of equitable relief can be made out having regard to the requirements for such relief, being representations as to future ownership and consequent detriment, as explained in Giumelli.
Although Watts and Thackray JJ delivered a separate joint judgment in Friar, they came to the same conclusion as Justice Finn. Their Honours further said paragraph 50:
The Rules are properly read as supplementing the power of the Court to dismiss frivolous or vexatious proceedings pursuant to s 118(1) of the Act. The Rules are also to be read in the context of the many cases confirming the Court’s inherent power to dismiss or permanently stay an application which cannot succeed, as to which see the authorities discussed in Bigg v Suzi (1998) FLC 92-799 at 84,974.
Justice Finn’s decision is still good law having regard to recent decision of the Full Court in Ritter & Ritter and Anor (2020) FLC 93-957 (“Ritter”).
In Ritter, a Judge summarily dismissed a husband’s application pursuant to section 79A of the Act. The matter was appealed. The Full Court found the judge was not entitled to so do and that the husband’s evidence, taken at its highest, was not “inherently incredible or unreliable” ([66]).
The relevant section of the Act in relation to summary dismissal applications is section 45A and, as the Court stated in Ritter at [26], a judge is obliged “to consider whether the husband had no reasonable prospects of success in prosecuting his application pursuant to s 79A” taking his case at its highest. As their Honours opine in Ritter, the trial judge fell into error in the summary dismissal application by assessing the substance of the case for trial under section 79A of the Act, referring to matters such as such as the husband’s motives for signing documents to transfer property and whether he had come to court with clean hands. In doing so, the Full Court found the trial judge considered the case on improper principles.
Additionally, the trial judge found that the husband did not have a reasonable cause of action, and the Full Court found that this is not the test to be applied.
Furthermore, as the Full Court noted, in her own decision the trial judge had found that the husband had an arguable case under section 79A of the Act. The Court said that from this finding, it is clear her Honour should have dismissed the summary dismissal application as she had found the husband had an arguable case. The Court went on to state that it was not her role to determine the strength, merit or success of the husband’s application, rather, whether the husband’s case raised an issue that a Court would be required to determine. In accordance with her own decision, she found it had.
Their Honours confirmed the role of the trial judge in determining a summary dismissal application and applying the relevant principles and said at [66]:
The determination of the issue must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable.
This finding is a recitation of Justice Finn’s decision in Friar. As their Honours opine, the primary judge herself had correctly stated the principle which is that, as a matter of law, the Court must consider whether the respondent’s evidence at its highest establishes that the husband has no reasonable prospect of success.
PROPERTY APPLICATION
Applying those principles to this matter and dealing with the property application first.
No leave has been sought to commence the proceedings out of time and thus the Court has no jurisdiction to entertain the application filed on 22 November 2018, however that flaw could be potentially rectified by the mother filing the appropriate application for leave if I do not dismiss her property application.
Looking at the substance of her application and taking her evidence at its highest, what is the mother’s case?
I have no idea what her case is or what asset or property she asserts is available to meet her claim. Her affidavit evidence did not assist me to understand whether she had an arguable case, let alone what her case was. The mother’s submissions, however, did assist me to understand the reasons why she brought an application for property settlement, spouse maintenance and backdated child support for the following.
The focus of the mother’s submissions before me were her bringing to the Court's attention that the children were subject to abuse, neglect and poor behaviour from their father, that the New Zealand courts and authorities were not listening to her or the children, were not a competent jurisdiction and she needed a property settlement, that is money, from the father such as backdated child support or spouse maintenance or a property settlement, to fund her continued litigation and establish the father's poor treatment of the children to a court. This is apparent from her affidavit of 18 January 2021 at paragraph 12 where she says:
I have sought the Australian courts resolve the financial settlement and child support back pay to alleviate the financial strain I have suffered being completely isolated from my family and support network.
I accept this submission and that this is the basis upon which the mother has made an application for property settlement “as deemed appropriate” by the Court for there is no evidence of property between them, the mother’s contributions to that property or the mother’s current financial circumstances. The mother could not take me, in her material, to any evidence of the parties’ assets pre, during or post co-habitation and the only evidence of the existence of any assets was five years after co-habitation ceased where the mother pleaded in her Financial Statement filed 2018 a negative asset position that she had $14,000 in superannuation, personal items worth $15,800 with debts of approximately $30,000.
Evidence of the father’s financial position, which the mother also relied upon, is set out in paragraphs 14-16 of his affidavit of 18 January 2021 wherein he says he has $2,000 in an Australian Commonwealth Bank Account, no superannuation in Australia and no liabilities in Australia but does not tell the Court what his assets are in New Zealand. I note parties have an obligation of full and frank disclosure in property proceedings no matter where their assets are situated. I note he is currently unemployed having been stood down from the airline industry due to COVID-19 and his care of the children.
However it is the mother’s case at its highest I am considering and she must lay out the foundation of her case. The question is whether she has raised a serious issue that requires a court’s determination and on her evidence I find she has not. There is no evidence before the Court as to what she asserts either of them had by way of assets at the commencement of their relationship, what assets they acquired during the relationship and, if so, how those assets were acquired, what assets they had at separation and how those assets were acquired and where those acquired assets were situated, how they conducted their relationship financially such as who paid for rent and food etcetera and in which state they conducted their relationship. This is the most fundamental of evidence needed to enable a Court to understand the case being brought by the mother. The only facts I know are that the parties co-habited somewhere in Australia, had a child and separated 9 months after co-habitation commenced. On these facts I find that the mother’s evidence did not raise an issue in her case that a court would be required to determine under section 90SM of the Act, see Ritter, and the mother’s application for property orders is to be summarily dismissed pursuant to section 45A(2) as having no reasonable prospect of success.
In light of this finding I also dismiss the mother’s Application in a Case filed 6 June 2018 seeking an order for a superannuation split and $360,000 “by way of property settlement”.
CHILD SUPPORT APPLICATION
In relation to the mother's application for child support, the mother has failed to provide the most necessary evidence such as a relevant notice of assessment or a request for an administrative assessment at the relevant time, notice of arrears of child support or any other document from the agency in relation to the liability of the father to pay child support in the period the mother asserts he was so liable. The mother was entitled to make an application for child support given it is common ground she was caring for the parties’ child from her birth and until sometime in early 2018. However I have no evidence that she made such an application or that an assessment issued given she produced no document to support this assertion, despite this having been an order she sought when she initially commenced proceedings in April 2018.
Taking her evidence at its highest, I am not satisfied the Court has jurisdiction to deal with any child support issues the mother has raised and, having dismissed her application for property orders, there is no associated application before the Court to which she can attach any application relating to child support issues. I find all her applications for backdated/arrears of child support are dismissed under rule 10.12(a) of the Rules as the Court does not have jurisdiction to entertain her application and was bound to fail as it had no reasonable likelihood of success, rule 10.12(d).
This decision does not preclude the mother from making an application to the child support agency and this is a step she can take. The Court’s jurisdiction in relation to child support has hurdles and barriers to cross before it can be exercised and is a most technical area of law. The mother has not provided any evidence that would enable the Court to find it has jurisdiction or to commence to consider her application for lump sum, backdated child support.
I note, consistent with the Trans-Tasman Proceedings Act 2010 (Cth) (“the Trans-Tasman Act”), the New Zealand Court may well be seized with the jurisdiction to deal with any child support issues the mother now asserts are outstanding particularly given that the children, father and mother reside in New Zealand.
The relevant factors under the Trans-Tasman Act to be addressed pursuant to section 19(2) are:
(a) the places of residence of the parties or, if a party is not an individual, its principal place of business;
(b) the places of residence of the witnesses likely to be called in the proceeding;
(c) the place where the subject matter of the proceeding is situated;
(d) any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be commenced (other than an exclusive choice of court agreement to which subsection 20(1) applies);
(e) the law that it would be most appropriate to apply in the proceeding;
(f) whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;
(g) the financial circumstances of the parties, so far as the Australian court is aware of them;
(h) any matter that is prescribed by the regulations;
(i) any other matter that the Australian court considers relevant;
and must not take into account the fact that the proceeding was commenced in Australia.
SPOUSE MAINTENANCE CLAIM
In relation to the claim the mother makes for spouse maintenance.
Again, as with her property application, an application for maintenance under section 90SE of the Act must be brought within two years of separation pursuant to section 44(5) of the Act and, without leave being granted, the Court has no jurisdiction to entertain her application. However that flaw could be potentially rectified by the mother filing the appropriate application for leave if I do not dismiss her application for spouse maintenance.
Going to the substance of her application. I have no current evidence of her financial position, whether she is working and earning income, how she supports herself, or evidence of her needs other than her assertion that she is suffering financial hardship and strain. The financial material she has filed and relies upon was filed in 2018. The mother currently lives in New Zealand and filed no evidence of her current assets or income. I note the father is now unemployed, and has been for some time due to, in part, the impact of COVID-19 and caring for the children. He worked in the aviation industry in New Zealand.
The highest the mother’s evidence came to in relation to her financial position was in her affidavit of 18 January 2021 at paragraph 12 where she says:
I have sought the Australian courts resolve the financial settlement and child support back pay to alleviate the financial strain I have suffered being completely isolated from my family and support network.
In those circumstances the mother's application was doomed to fail, as she did not bring the application within two years of separation, or provide the most basic of information to enable the Court to assess whether she was a former partner within the meaning of the Act, unable to support herself adequately having regard to the care of children or the length of the relationship or for any other relevant matter under section 90SF(3) of the Act. In the absence of any evidence to support her bald claim I find the mother’s evidence, taken at its highest, did not raise an issue that a court would be required to determine, see Ritter, and this application is summarily dismissed pursuant to section 45A(2) of the Act.
THE MOTHER’S INTERIM APPLICATION FILED 17 NOVEMBER 2020
The orders sought in the mother’s interim application filed 17 November 2020 are as follows:
1.I seek the relisting of the matters before the court to finalise financial settlement.
2.I seek the Australian courts exercise jurisdiction to review and reppeal [sic] the final orders made in New Zealand as New Zealand has proven not to be a competent jurisdiction.
3.I seek the Australian courts request the N.O.E and Bundles of evidence present at the final hearing … containing substantial perjury by Mr Nagle.
4.I seek the courts order to have X and Y immediately returned home to Australia in accordance with their rights [under the] united nations convention of childrens rights 1989.
I have dealt with order 1 and dismissed her extant application for property orders.
Dealing with order 2.
Australian courts do not stand in appeal nor review decisions of courts of other sovereign nations, as courts of other sovereign nations do not sit in appeal or review decisions of Australian courts. This was a vexatious application to bring and doomed to fail at the outset. Further, the mother is yet to exhaust all her remedies in New Zealand and has continued to engage the courts of that country on these vexed issues for her. This application was an abuse of process in that the mother is seeking to engage two separate jurisdictions simultaneously on the same issues. In her affidavit of 18 January 2021 the mother asserts at paragraph 2.4 “there is evidence of judicial bias, incompetence, perjury and serious safety concerns for the children being ignored by New Zealand judges and registry staff” and, at paragraph 14, “[t]here is undeniable evidence of judicial bias and miscarriage of justice before the [N]ew [Z]ealand courts and the conduct of the court appointed solicitor for the children, Ms D”. These allegations are not justiciable in Australia and the Court has no jurisdiction to entertain her application and it will be summarily dismissed pursuant to section 45A(2) as having no reasonable prospect of success.
Dealing with order 3.
If the mother is of the view the father has perjured himself in New Zealand court proceedings, that is a matter for her to bring to the attention of the relevant New Zealand authorities and Australia has no jurisdiction or control of over the conduct of proceedings in New Zealand. The bringing of this application by the mother was for an improper purpose in that she fundamentally disagrees with the decisions made in New Zealand and she is yet to exhaust her engagement in that jurisdiction on these vexed issues for her. This too was a vexatious application to bring and amounts to an abuse of process given the mother continues to engage the New Zealand courts on these related matters and was doomed to fail at the outset. These allegations are not justiciable in Australia and the Court has no jurisdiction to entertain her application and it will be summarily dismissed pursuant to section 45A(2) as having no reasonable prospect of success.
INTERIM PARENTING APPLICATION
The fourth order sought is that the children, X and Y, immediately return home to Australia in accordance with their rights under the United Nations Convention of Children's Rights 1989.
There is no final application on foot for parenting orders as the mother’s Initiating Application for parenting orders was abandoned by her in January 2020. Although rule 5.01(1) of the Rules restricts parties from applying for interim orders if the extant final orders sought do not include that cause of action, rule 1.12(1) allows the Court to dispense with the rules if the Court, on application or its own initiative, orders otherwise.
The mother seeks at paragraph 4 of the interim application filed 17 November 2020, inter alia:
5.I seek the courts order to have X and Y immediately returned home to Australia in accordance with their rights [under the] united nations convention of childrens rights 1989
(As per the original)
I will not take the technical point that this is but an interim application and not a final application given Justice Finn’s position in Friar.
In the matter of Cleary v Jeans [2006] NSWCA 9 (“Cleary”), a decision of the NSW Court of Appeal, their Honours adopted the reasoning in Secretary of State of Trade and Industry v Bairstow [2004] 4 All ER 325 (“Bairstow”) relating to abuse of process applications and this ratio from Cleary was adopted in Five D v Impact Building [2007] NSWSC 993 at [26]:
In [Cleary], the New South Wales Court of Appeal adopted the reasoning in [Bairstow] in finding that abuse of process can apply where parties to later civil proceedings were not parties to the earlier proceedings. However, “it would only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated, or if to permit such relitigation would bring the administration of justice into disrepute.”
In Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 at [25]:
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.
In Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (“Brimaud”) at 46:
The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, the more flexible rules under the rubric of vexation and abuse of process…[t]he general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.
(Emphasis added)
On the evidence and for the following reasons I find this application is also doomed to fail as it amounts to an abuse of process and should be dismissed for the following.
First, there are ongoing proceedings commenced by the mother in New Zealand in the Supreme Court seeking to overturn Judge Adams’ decision that the children remain in New Zealand, being a Writ of Habeas Corpus claiming the children have been unlawfully detained and this application is yet to be heard. Further, there is the limited re-opening hearing in relation to the children’s time listed on 15 May 2021.
The mother seeks I make an order which, if granted, would render nugatory the application she has filed in the Supreme Court in New Zealand and operate as an appeal of the orders of Judge Mahon who gave the limited re-opening, noting his decision did not extend to re-opening the mother’s application to relocate the children to Australia to live with her. Australian courts do not stand in appeal of decisions of courts of other sovereign nations, as courts of other sovereign nations do not sit in appeal of decisions of Australian courts and this application seeks to do that very thing.
Further, it is patently clear that the mother has invoked the jurisdiction of New Zealand and that the New Zealand Court are seized of jurisdiction in relation to the children’s living arrangements as the mother has and continues to participate in proceedings on this issue and other issues concerning her children, such as their safety, and has done so for over three years.
Consistent with the decision of Cleary at [62], quoting Morritt VC in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, that:
…it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute…
To permit the mother to maintain concurrent ongoing applications in two sovereign jurisdictions seeking the same outcome would bring the administration of justice into disrepute and offend the rule of comity between Courts.
Going to the evidence the mother relies upon and taking it at its highest. Consistent with Judge Mahon’s reasons for his decision to give the mother a right to re-open the parenting matter on a limited basis, the evidence in the mother’s various affidavits were a mere recitation of that which she has been asserting since the New Zealand courts assumed jurisdiction, namely that the father and paternal grandmother hurt the children, neglect them and that the children are frightened of them in circumstances where all judges who have ruled in this matter in New Zealand noted in their judgments that the children have made no such disclosures to their lawyer, social worker involved in the matter or to their school.
The mother has not produced or provided a skerrick of fresh evidence to enable me to find that there was a case which this Court should hear and determine. Her case, at its highest, is that she does not think the New Zealand courts are, to use her words, “a competent jurisdiction” as she fundamentally disagrees with the decisions they have made. It was apparent from the thrust of the mother's submissions and her material, her inability to accept the decisions of Judge Adams on 24 August 2020, Judge Mahon in March 2021 and Justice Powell in March 2021 by her continued litigation and attempted re-litigation in Australia of matters concerning the care of her children that is driving her campaign in New Zealand and her attempted campaign in Australia.
It is clearly an abuse of process to agitate for Australian courts to assume jurisdiction in circumstances where the mother is effectively seeking to re-litigate the decisions of the New Zealand courts in Australia and yet continues to engage in proceedings in New Zealand and invoke that country’s jurisdiction in relation to the care of her children, including their alleged unlawful detention, see Brimaud.
The facts are that the children are living in their well settled environment, a living environment that the mother disagrees with, however the mother has invoked the New Zealand court’s jurisdiction in relation to her assertion of the unlawful detention of her children in New Zealand and that matter is yet to be heard.
The mother’s extant applications on foot in New Zealand in the Supreme Court, Family Court and Local Court are as follows:
(1)Her assertions that her children have been unlawfully detained in New Zealand for a period in excess of two years and their rights under the United Nations Convention on the Rights of the Child have been offended by these orders to be heard in the Supreme Court;
(2)That she and the children are being harmed by their father and the paternal grandmother and are frightened of them, to be heard in a Local Court in late June 2021; and
(3)The limited re-hearing via leave granted by Judge Mahon to re-open the time with arrangements for the children to be heard in the Family Court on 15 May 2021.
The reality is there are final parenting orders in relation to the children’s living arrangements made on 24 August 2020 by Judge Adams, upheld by the Appeal Court and High Court of New Zealand, which orders include an order they not leave New Zealand until at least 2023, and only then by application to the Court. The New Zealand courts are currently seized of jurisdiction in relation to the children. Judge Adams’ decision was confirmed as shortly ago as March 2021 by Justice Powell.
The mother’s conduct in attempting to maintain two sets of proceedings in relation to the same issues, namely that her children are being unlawfully detained in New Zealand, which matter is yet to be heard in the New Zealand Supreme Court, and seeking orders in her interim application filed in this Court to by order permit the children to live in Australia amounts to an abuse of process and borders on vexatious given Judge Mahon’s specific re-opening parameters.
On these facts the mother’s interim application for an order that the children be returned to Australia was vexatious and an abuse of process, doomed to fail, and was maintained for an ulterior purpose namely to re-litigate the final orders made by Judge Adams in August 2020, ultimately confirmed by Justice Powell in March 2021 and this application will be summarily dismissed pursuant to section 45A(4) of the Act.
The mother’s Application in a Case filed 3 April 2019 requesting the matter be re-listed on an urgent basis, and for the final hearing to be expedited is dismissed given there are no proceedings on foot as is her Application in a Case filed 11 October 2019 requesting the matter be transferred from Sydney to Canberra for the same reasons.
The extant applications of the mother as follows are dismissed for the following:
(1)Applications filed 22 November 2018 and 31 January 2020 for property orders summarily dismissed pursuant to section 45A(2) of the Act as having no reasonable prospect of success;
(2)Application for arrears of child support filed 18 April 2018 dismissed under rule 10.12(a) of the Rules as the Court does not have jurisdiction;
(3)Interim application filed 6 June 2018 seeking $360,000 in property settlement and a superannuation split is summarily dismissed pursuant to section 45A(2) as having no reasonable prospect of success;
(4)Interim application filed 6 June 2018 seeking parenting orders for the children to live with her and spend time with father as agreed and restrain father from taking children from Australia is dismissed as there is no final application on foot for parenting orders and that these matters have been litigated and determined in New Zealand and this application now amounts to an abuse of process under section 45A(4) of the Act;
(5)Interim application filed 3 April 2019 seeking re-listing on urgent basis and expedition dismissed on the basis there are no proceedings now on foot;
(6)Interim application filed 11 October 2019 seeking a transfer of the matter from Sydney to Canberra dismissed on the basis there are no proceedings now on foot;
(7)Interim application filed 17 November 2020:
(a)Order 1 seeking a property order is summarily dismissed under section 45A(2) of the Act as having no reasonable prospect of success;
(b)Order 2 is summarily dismissed under section 45A(2) of the Act as the Court has no jurisdiction to entertain the application and it amounts to an abuse of process, section 45A(4) of the Act, and is doomed to fail;
(c)Order 3 is summarily dismissed as vexatious and an abuse of process under section 45A(4) of the Act and doomed to fail;
(d)Order 4 is dismissed as an abuse of process under section 45A(4) of the Act.
The mother referred me to a paper by Judge Peter Boshier, Principal Family Court Judge of the Family Court of New Zealand, and I will refer to that paper. His Honour says in his conclusion:
…[T]he concept of trans-Tasman legal relationships is wide ranging but, in the specific field of family law, we have much in common and we have long co-operated on a basis of close friendship. We have respected each other’s sovereignty but have acknowledged that we are sufficiently geographically close as to be virtually over the fence from each other.
To retain its integrity, law must of course change and adapt. Ways of communicating electronically have enabled us to share information and to make enquiries in a way which is consistent with speed and appropriate informality.
If family law is to maintain its relevance, it needs to acknowledge that movement between Australia and New Zealand is easy and inexpensive, and that there will be consequential family relationship issues that we will both have to deal with.[1]
[1] Judge Peter Boshier, “Developing Family Relationships” (2010) 16 Canterbury Law Review 127, 144.
Unfortunately, what his Honour's excellent paper refers to is not on point in the mother’s case. The New Zealand courts have made their determination, and this Court accepts that determination, a determination that the mother voluntarily engaged in and continues to engage in by invoking the jurisdiction of the New Zealand courts.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 8 June 2021
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