HAGAR & MORENO
[2021] FCCA 1271
•10 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAGAR & MORENO | [2021] FCCA 1271 |
| Catchwords: FAMILY LAW – Property – Application to set aside consent orders – Application for summary dismissal. FAMILY LAW – Property – Application for removal of Caveat. FAMILY LAW – Costs – Application for Indemnity Costs. |
| Legislation: Family Law Act 1975 (Cth), ss.64B, 45A, 79A, 117 Federal Circuit Court Rules2001, r.13.10 |
| Cases cited: Beck & Beck [2004] FamCA 92 |
| Applicant: | MR HAGAR |
| Respondent: | MS MORENO |
| File Number: | BRC 10182 of 2020 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 4 December 2020 |
| Date of Last Submission: | 4 December 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 10 June 2021 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Simonidis Steel Lawyers |
ORDERS
That the Amended Initiating Application filed 16 November 2020 be summarily dismissed.
That within sixty (60) days of the date of these orders the Applicant pay the Respondent’s Costs fixed in the sum of $10,403.72.
That within fourteen (14) days of the date of these orders the Applicant, at his sole cost, do all acts and things necessary to remove the caveat having caveat number xxxxx58 over the title of the real property situated at A Street, Suburb B having title reference xxxxx23.
That in the event the Applicant fails, neglects or refuses to do all acts and things necessary to remove the caveat in accordance with order (3) herein, then pursuant to section 106A of the Family Law Act 1975, a Registrar of the Federal Circuit Court of Australia at Brisbane is hereby empowered to sign any and all documents on behalf of the Applicant that may be required to remove the caveat, and for this purpose, an affidavit from the Respondent deposing to the Applicant’s non-compliance shall be sufficient evidence to give rise to this order.
IT IS NOTED that publication of this judgment under the pseudonym Hagar & Moreno is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 10182 of 2020
| MR HAGAR |
Applicant
And
| MS MORENO |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Hagar, has filed an application seeking to re‑open parenting proceedings that had been finalised by way of consent orders on 26 February 2018. He is also seeking to have property orders set aside. These orders were also made by consent on 22 February 2018. The respondent, Ms Moreno, has asked the court to summarily dismiss both limbs of his application. She has also sought orders for the applicant to pay her costs and that he remove a caveat lodged over a property owned by her and her husband. The applicant indicated to the court that he would be prepared to remove the caveat if he was not successful in his application to re-open the property proceedings.
The parenting application concerns the care arrangements of the parties' two children, X, aged 15 and Y, who is 11. Throughout these reasons I will refer to the parties as the father and the mother. X and Y will be referred to collectively as the children. I mean no disrespect in doing so.
In the event that the father is successful in re-opening the parenting proceedings he would seek orders that would provide for him to have sole parental responsibility for the children and for them to live primarily with him. He proposed that the children spend alternate weekends with the mother from after school Friday to before school Monday and overnight every second Wednesday. The orders sought by him in his financial application do not particularise a financial adjustment order but rather orders for certain disclosure. The matter proceeded on the basis that he was seeking an order under s.79A that allows for property proceedings to be re-opened in certain circumstances. He had not amended his application to specifically seek an order under that section but the mother was aware of the nature of his application.
By way of a brief background, the father is 45 years of age and the mother 38. They commenced to live together in 2005, were married in 2006 and separated in 2016. A divorce order was made in September 2018. Both children were born in Country D where their mother was also born. The father has not re-partnered and remains living in the former matrimonial home. The mother is in a relationship with Mr C.
The Orders made on 26 February 2018 were made by consent of the parties. They were both represented by experienced counsel. The orders provided for the parties to have equal shared parental responsibility; the children to live with the mother; and to spend time with the father each alternate weekend from after school Friday to before school Wednesday. In the event that the Friday was a non-school day the time was to commence at 8.30am and if the Wednesday was a non-school day the time would end at 5pm. There was provision in the orders for the children to spend half school holidays with each parent and on special occasions. There were some 38 orders in total. I do not intend to describe the remaining provisions.
Documents relied on
The relevant orders under consideration were made on:
a)22 February 2018 (Property); and
b)26 February 2018 (Parenting).
In support of his case the father relied on his:
a)Amended Initiating Application filed 16 November 2020;
b)His affidavits filed:
i)12 October 2020; and
ii)13 October 2020.
The mother relied on her:
a)Amended Response filed 4 December 2020;
b)Her affidavit filed 17 September 2020;
c)Orders made 22 September 2020; and
d)The affidavit of Mr E filed 1 December 2020.
I have had regard to all of the material referred to above and the oral submissions made. In determining the matter I will address each limb of the father’s application separately.
Parenting proceedings and the application of the rule in Rice & Asplund[1]
[1] [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570
Legal approach
Although the court has the power to vary or set aside parenting orders[2], a court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing. The Full Court of the Family Court in Rice & Asplund held:
[The court] should not lightly entertain an application to reverse an earlier custody order. … the court would need to be satisfied by the applicant 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. … These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.
[2] Section 64B(1)(b)
It is for the court to exercise its discretion in deciding whether to embark upon a full hearing of a matter or to determine the ‘threshold’ issue as a discreet point by way of preliminary determination.[3] Warnick J in SPS & PLS[4] considered the term ‘threshold’ in this context to mean:
… ‘the first question to be determined’ and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered.[5]
[3] Bennett& Bennett (1991) FLC 92-191, D & Y (1995) FLC 92-581
[4] [2008] FamCAFC 16
[5] ibid at page 13
Collier J in King and Finneran said:
To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children.[6]
[6] [2001] FamCA 344 at paragraph 44
His Honour also said:
The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection.[7]
[7] ibid at paragraph 41. His Honour’s reference to s.68F was to the Family Law Act as it was prior to the 2006 amendments. See s.60CC
Murphy J in the Full Court decision of Searson & Searson[8] endorsed the approach taken by Warnick J and considered a number of authorities relative to the consideration of the Rice v Asplund argument being considered as a preliminary point. It is worth repeating this analysis of these authorities:
[8] [2017] FamCAFC 119 Kent and Loughnan JJ agreed with the decision of Murphy J
[8] It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.[9]
[9] Rice & Asplund (1979) FLC 90-725; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383
[9] In the important decision of SPS & PLS,[10] (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”.[11] It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below.
[10] (2008) FLC 93-363 approved in Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383; Walter & Walter [2016] FamCAFC 56
[11] SPS at [46]
[10] In SPS, Warnick J went on to hold[12] that:
[12] at [48]
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[11] His Honour went on to say this:[13]
… [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
[12] Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.[14]
[13] Thus, for example, Nygh J said in McEnearney & McEnearney:[15]
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
[13] SPS at [81]
[14] Rice & Asplund at 78,905 per Evatt CJ
[15] (1980) FLC 90-866 at 75,499
[14] To similar effect, Warnick J said in SPS:[16]
Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” 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.
[15] The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.
[16] SPS at [58]
In Marsden and Winch[17] the Full Court[18] said:
[48] In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
[49] However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[19]
[50] Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[17] [2009] FamCAFC 152
[18] Bryant CJ, Finn and Cronin JJ
[19] See for example Jennifer McIntosh ‘Enduring conflict in parental separation: Pathways of impact on child development’ (2003) 9 Journal of Family Studies 63 and Jennifer McIntosh and Richard Chisholm ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Journal of Family Studies 37.
I am satisfied that it is appropriate in this case to consider the application to re-open the proceedings as a preliminary point. I have come to that view because the father’s application was filed only two years after the making of the consent orders and if possible children should not be exposed to ongoing litigation and further family report interviews. For reasons that will become clear I have found that the father has failed to provide sufficient evidence to warrant the imposition of further litigation on these children.
The Father’s case
The father argued that the parenting proceedings should be re-opened because he was concerned about: family violence in the mother’s household; the mother’s mental health; the mother discussing adult issues with the children; the children’s sporting arrangements; and a failure on the mother’s part to follow the 2018 orders to attend a particular course. I will address each of these in turn.
The father addressed his concerns about family violence in his affidavit filed 12 October 2020 at paragraphs 54 to 71. He said he was subjected to family violence from the mother during the marriage. This was an assertion rather than evidence. He did not particularise the allegations. In any event he entered into the consent orders in the knowledge of his allegations about the domestic violence. He gave evidence of X becoming emotional and teary but does not give evidence of this being related to family violence. He did give evidence of X saying that her mother and Mr C fight three times a week but that falls short of establishing that there is violence in the mother’s home. The father alleged the mother had used coercive and controlling behaviour towards him during their marriage and was using it towards her current partner and the children. Unfortunately he does not give any evidence to establish these allegations other than to state that it is happening. He alleged the mother had misled the court in the earlier proceedings but the purported transcript at paragraph 65 does not assist his case as it is not possible to contextualise the conversation. I accept the submission from the mother that the father has not given evidence of even one incident of alleged family violence. I also accept the submission that the father’s apparent concerns should be questioned given in his application he is seeking orders for the children to spend four nights per fortnight with the mother, unsupervised.
In relation to his stated concerns about the mother’s mental health he made a number of suggestions as to what conditions he believed the mother suffers, including that she suffers from Munchausen Syndrome and Munchausen Syndrome by Proxy. He is not a qualified psychiatrist and cannot make a diagnosis of anyone let alone his previous partner. Putting that aside for a moment, he gave evidence of the mother telling the children in 2017 that she had throat cancer, telling them in August 2018 that she had stomach cancer and that more recently she had COVID-19.
The father’s evidence is that he had a conversation with the mother about her telling X about the throat cancer. His transcription of this conversation is as follows:
Mr Hagar: “Ms Moreno. I’m very concerned. X said you have throat cancer …….She has been crying about it and is very upset. This is terrible news. I am very concerned.. Does Y know as well because I haven’t talked to him about it yet? What is your diagnosis?”
Ms Moreno: “Hi Mr Hagar. I don’t know yet. I’m running test right now. Nothing to worried. Tell X that I’m ok. I have doctors next week. Would you like me to talk to her? I have a nodule on my throat. I can ring after this.”
Mr Hagar: “Oh okay. X said you said you have throat cancer ……I’ll correct her and tell her nothing is confirmed yet. Good luck with the tests.”
Ms Moreno: “Hi Mr Hagar would u mind if I speak to her? Unless her throat hurts ….”
Although the father said that the mother was not child focused in telling a then 11 year old about the potential cancer diagnosis there is nothing in the evidence to suggest that she wasn’t. The transcription suggests the opposite. In any event this occurred before the father consented to the orders in 2018. He was aware of it when he did so. That is not to say the issue of telling X about the throat cancer is not relevant to any current concerns the father may have in the context of further alleged conversations.
The father alleged that in August 2018 the mother told the children she had stomach cancer. She denies doing so. There is no evidence of her doing so. The father gave evidence that during the child support arbitration the mother said that she stopped working in July 2018, on doctor’s orders as she had a hernia and they thought it was cancer. That is not evidence that she told the children she had cancer. The father expresses a belief that she did but does not give any evidence to support his belief.
The father further complains that the mother told the children, whilst they were in the father’s care, that she had COVID-19. There is no evidence that she did. The mother gave evidence that she told the children that she was unwell and that she was getting tested. The father considered the mother’s approach as causing unnecessary alarm to the children, especially given they were in his care. This occurred in the relatively early stages of the pandemic in Australia. Whilst I accept the father’s criticism of the mother’s decision to tell the children before getting her results, this in and of itself would not be sufficient to re-open parenting proceedings. If the mother had have tested positive she could have then discussed with the children the necessity for quarantining rather than causing the children some anxiety in the meantime. I do not accept, however, the father’s submission that the mother’s actions were a major and significant risk to the children’s welfare.
The father also raised in issue the mother’s alleged use of alcohol as an anti-depressant. He had raised this issue in the first round of proceedings but, nonetheless, consented to the orders that the children live primarily with the mother. There was no evidence before me to make any finding that this is a new issue or one that is of more concern than when the father consented to the earlier orders.
The father raised concern as to the mother’s treatment of Y when she found a lump on his neck in January 2020. She took him to a doctor who suggested that the child had glandular fever. Faced with that potential diagnosis the mother withdrew Y from contact sports. Her decision to do so was child focused and in accordance with the advice she received from the doctor. The mother organised blood tests to be certain of the preliminary diagnosis. According to her the diagnosis was confirmed and the child eventually recovered. The father sought a second opinion that contradicted the first diagnosis. The parties remain in dispute as to what the test results showed.
I have no doubt the father treats his responsibilities as a parent caring for his children’s health seriously. He is to be commended for that. He does not trust the mother’s care of the children. On the evidence before me however, I am satisfied that in this incidence the mother acted appropriately and in a child focussed manner. Parents, even in intact families, often disagree with the medical treatment to be given to children. That is part of parenting. There is nothing in the father’s concern about the mother’s approach that goes towards establishing there has been a significant change of circumstances in this regard.
The father also expressed concern that the children had not been attending their extra-curricular sports. The father at paragraph 116 of his affidavit said the mother removed the children from these sports without consulting him. He informed the court in his oral submissions that he has arranged private coaching at his cost. I am not sure what to make of the father’s evidence because he goes on to say at paragraph 118 that Y does not attend most training nights when in his mother’s care. This would suggest that he has not been removed from playing. The mother’s evidence was that she always takes Y to his training and games except when his is sick or when he had family visiting from Country D. The mother did arrange for Y to sign up to a different club. For the purposes of this judgment I will accept the father’s evidence that she did so without any prior consultation with him. The father had taken on the role of coach for the first club and the father is suspicious of the mother’s motivation for the change of club. She said it was because Y was better than the other players at the first club but the father believes it was because she did not like the time he was spending with Y during training. For the purposes of this judgment the motivation is not relevant.
Sport is generally important for children. This seems to be accepted by the parents but clearly the father does not accept the mother holds a true commitment to ensuring the children attend. There was no provision in the 2018 orders in relation to the children’s attendance at sport. The parents were to each have responsibility for the day to day care, welfare and development of the children whilst in their care. Therefore if the mother does not take the children to sport whilst they are in her care she has not breached the orders. Notwithstanding the importance of sport and other extra-curricular activities a failure by a parent to take a child to training or competition is also not sufficient to establish a significant change of circumstances.
In his submissions the father also brought to the court’s attention that the mother has not provided him with evidence of completion of the Post Separation Orders Program in contravention of Order 23 of the 2018 orders. The father did not bring any Application-Contravention alleging the breach. This alleged breach is not a basis for establishing a significant change of circumstances even though it is a legitimate complaint.
Although none of the complaints raised by the father in and of themselves establish a significant change of circumstances warranting a re-opening of the 2018 orders the question that should be asked is: do they collectively amount to a significant change of circumstances? After reading the father’s material and hearing his submissions I formed the view that he is sincere in his concerns. I make no criticism of him for caring deeply for his children.
He complained about being poorly advised by his 2018 lawyers. I have already noted he was represented by experienced counsel, but I can be satisfied he regrets his decision to give instructions to settle the parenting proceedings in the way he did. Having remorse for a decision is not a change of circumstances contemplated by Rice & Asplund. When I take into account collectively all of the complaints raised by the father I find that he has not established a significant change of circumstances to warrant the re-opening sought by him.
In arriving at that decision I have adopted the Full Court’s approach in Marsden and Winch referred to above where they held that the changes in the lives of families that will permit re-litigation need to be circumscribed otherwise there would exist the spectre of endless litigation finalising only when a child turns 18. Murphy J in Searson & Searson spoke about the evil of a perennial football match between parents and the harm that can be caused to children by allowing parents to canvas again and again issues relating to their children. His Honour did distinguish cases where the parties entered into consent orders but no longer remained in agreement: due to circumstances that have changed since the making of the consent orders.
I have taken into account the parties in this case entered into consent orders, after the release of a family report but before a contested hearing. I note that that consent was arrived at even though the family report writer recommended an equal time arrangement. On the evidence filed by the father I cannot be satisfied that if I was to allow a re-opening there would be any significant change to the current orders and certainly not the fundamental changes as proposed by him for a change in the children’s primary residence and parental responsibility. To re-open the litigation would involve these children in further litigation raising the potential for them to experience heightened anxiety and stress. It is not in their best interests to do so. There is insufficient evidence to enable me to make a finding of a change of circumstances sufficient to meet the threshold in Rice & Asplund. That part of the father’s application will therefore be dismissed.
Application to re-open property proceedings
The parties entered into final consent orders in relation to property adjustment on 22 February 2018. The father in his Amended Application sought a number of orders that relate to property. In summary they were for the mother to provide certain documents by way of disclosure and for the court to obtain certain transcripts from the Administrative Appeals Tribunal. He had also sought an order that all previous orders be discharged although he did not set out the court’s power on which he was relying to obtain that order.
When hearing oral submissions it appeared that he was seeking relief pursuant to s.79A but that was never pleaded despite being given an opportunity to do so. On 22 September 2020 I made orders for the father to file and serve an Amended Initiating Application setting out the orders he was seeking regarding s.79A. I made a further order that the father file and serve an affidavit addressing the circumstances surrounding the basis for the property orders made 26 February 2018 to be set aside pursuant to s.79A by no later than 14 October 2020.
The mother has asked the court to summarily dismiss the property aspect of the father’s application. The court has both inherent[20] and legislative powers, in certain circumstances, to summarily dismiss applications before it. Section 45A of the Act reads as follows:
[20] Rohnan & Rohnan [2010] FMCAfam 1091
Summary decrees
No reasonable prospect of successfully defending proceedings
(1) The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
No reasonable prospect of successfully prosecuting proceedings
(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.
When there is no reasonable prospect of success
(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.
Proceedings that are frivolous, vexatious or an abuse of process
(4) 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.
(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.
Costs
(6) If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.
Action by court on its own initiative or on application
(7) The court may take action under this section on its own initiative or on application by a party to the proceedings.
This section does not limit other powers
(8) This section does not limit any powers that the court has apart from this section.
Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) relates to “Disposal by summary dismissal” and provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Mindful that to deprive a party from legitimate recourse to the courts is a serious matter, the court’s power to summarily dismiss an application is a discretionary one that should only be used sparingly. In doing so the court needs to be satisfied there is no reasonable prospect of success.
The court must take the evidence of the applicant for relief at its highest unless the evidence is inherently incredible.[21] A case that appears to be weak will not necessarily be sufficient to warrant summary dismissal but an application does not have to be hopeless or bound to fail to have no reasonable prospect of success. If the court is satisfied that an application shows that there is a reasonable cause of action but the pleadings are defective it would ordinarily permit an applicant to amend the pleadings. If the material filed shows that a real legal question is to be determined an application should not be summarily dismissed. The overarching consideration or principle is for the court to do justice.[22]
[21] See Webster v Lampard (1993) 177 CLR 598; Ritter & Ritter and Anor [2020] FamCAFC 86
[22] See Bigg v Suzi (1998) FLC 92-799; Pelerman and Pelerman (2000) FLC 93-037; Beck & Beck [2004] FamCA 92
In Lindon v Commonwealth of Australia (No 2)[23] Kirby J said:
The guiding principle is,…, if it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
[23] [1996] HCA 14
In Karlsson & Karlsson[24] Ainslie-Wallace J said:
[40] Indeed, recent authority has preferred to apply the test of “no reasonable likelihood of success” rather than “doomed to fail” (see Spencer v Commonwealth of Australia[25] where the High Court discussed the “bound to fail” test and Bretton & Bondai[26] ).
[41] That is not to say that the power should not, as Lindon said, be exercised sparingly and rarely, but that it will be exercised where it is clear that there is no real question to be tried (see Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd[27] ).
[24] [2020] FamCAFC 207
[25] [2010] HCA 28; (2010) 241 CLR 118
[26] [2013] FamCAFC 168 at [59]–[60]
[27] [2013] VSCA 158; (2013) 42 VR 27 at [35]
The mother argued that despite being given an opportunity to rectify and particularise his application for financial relief, the father failed to do so. I accept the submission that the father did not in his amended application identify or particularise the basis for his relief sought or disclose a reasonable cause of action. That would ordinarily be sufficient to warrant a matter being summarily dismissed. In this case however I am satisfied that the father had in oral submissions made it clear to the court and the mother that he was attempting to make an application under s.79A. Unfortunately he has failed to clearly identify which limb of that section he is relying on. The mother rightly complains that she and the court should not have to guess.
That section reads:
(79A) Setting aside of orders altering property interests
(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
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The father complained about being poorly represented. He went so far as to infer that his counsel had a close connection with the solicitor for the mother. There is no evidence before the court of any nature or kind that would enable me to make any adverse finding against the legal representatives of the parties at the time of the making of the 2018 orders. I do not take into account any comments made by the father in that regard.
The father took the court to a number of matters that suggests that he was relying on a failure of the mother to make full and frank disclosure of her financial affairs at the time he entered into the consent orders. Unfortunately he has not provided any evidence that would enable me to accept his submissions. He is clearly concerned that the mother has an interest in real estate in Country D including a factory and warehouse. This was a live issue in the original proceedings. The property proceedings settled some four days out from the date of the final trial. The father did not instruct his legal team to challenge the mother’s evidence, electing to enter into consent orders.
Notwithstanding that, two years after he entered into those orders he still has not produced any evidence to show that the mother’s assertions as to ownership of the factory at the time of the consent orders was anything other than what was asserted. In other words he has not obtained any registration of ownership to establish the mother had deceived him or the court in the material that was before the court at the time. Nor has he found any other evidence to that effect.
On 8 November 2019, the Administrative Appeals Tribunal delivered a decision in relation to child support involving the parties. That decision was annexed to the mother’s affidavit. The father had sought a departure order but that application was refused. In that judgment the presiding member found no evidence that the mother owned real estate in Country D, other than a car park, which was the case when the parties were before this court in 2018. An application by the father to obtain bank documents dating back to 2013 was refused by the presiding member who found that the father had made that application motivated by a desire to re‑litigate the property proceedings which he had conceded.
There is simply no evidence before this court that the mother failed to make anything but full and frank disclosure when the matter was before the court in 2018. There was no evidence of fraud, duress, a failure to make proper disclosure, or the giving of false evidence. There was no evidence that anything has arisen since the making of the orders that would make it impracticable for the orders to be carried out. Indeed the property orders have been complied with. The other provisions of s.79A likewise do not apply.
In those circumstances it is clear that the father has no reasonable prospects of success in prosecuting his application and it must therefore be summarily dismissed. To do otherwise would lead to an injustice to the mother in having to defend the application. I will order accordingly.
Costs Application
The mother has asked the court to order the father to pay her costs on an indemnity basis in the amount of $10,403.72. Ordinarily each party to proceedings under the Family Law Act would bear his or her own costs.[28] However if the court is of the opinion that there are circumstances justifying a costs order, the court may make such order as it considers just.[29] In determining whether to make such an order the court is required to have regard to the following factors set out in section 117(2A):
[28] Section 117(1)
[29] Section 117(2)
[117(2A)] In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
In Fitzgerald v Fish[30] the Full Court[31] said:
…Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[30] (2005) 33 FamLR 123 at [41]
[31] Kay, Warnick and Boland JJ
In Donaghey v Donaghey (Costs)[32] Murphy J said:
[31] It is plain that section 117(2A) does not prescribe that more than one factor must be present or that any one factor has more or less weight than any other
[32] Of particular relevance here is the fact that modest, or even poor financial circumstances, is not determinative of the issues. Were it otherwise, the discretion inherent in this section would be curtailed and one of the enumerated factors will preclude appropriate consideration being given to all factors relevant to the discretion.
[32] (2012) 47 FamLR 306
I will address those factors that are relevant to this decision
Financial circumstances of each of the parties
The mother did not file a financial statement although she did give evidence as to having a very modest income of around $10,000 per annum. She had plans to open a business this year but said that the money she had saved to do so has now been spent on legal fees. In the father’s financial statement he deposed to having an income of $2,125 per week and assets to the value of $486,020.
Although the father appears to have a greater income than the mother I am not able to truly assess their financial circumstances given the mother did not file a financial statement. I do not propose to give any weight to this consideration.
Legal Aid
Neither party was legally aided.
The conduct of the parties to the proceedings
The father’s application was misplaced and should not have been filed. Consequently the mother has incurred legal costs to respond to it. The parenting application did not meet the standard necessary to overcome the Rice & Asplund threshold and the property proceedings were clearly without merit. This is a factor that should be given some significant weight.
Whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court.
The applications brought by the father were not necessary as a consequence of a failure of the mother to comply with previous orders. Although the father complained the mother had not provided him with evidence of completion of a course required of her in the 2018 orders that was not a basis for the application brought by him.
Whether any party has been wholly unsuccessful
The father was wholly unsuccessful in each of the limbs of his application.
Consideration of offers made in writing
There were no offers made in writing.
Conclusions as to whether a costs order should be made
When I weigh up the factors above I am satisfied the father should pay some or all of the costs of the mother. She has been required to fund her legal representation to respond to two applications that have each been found to be without merit. She should not be out of pocket in doing so.
Should an indemnity costs order be made
Having determined that a costs order should be made I now turn my mind to the issue of whether that order should be on an indemnity basis.
In Colgate Palmolive v Cussons[33] Sheppard J considered the jurisprudence in relation to the question of costs and confirmed the long standing practice is that such orders are to be on a party and party basis. His Honour held that the court must not make an order on another basis unless the circumstances of the case warrant it departing from the usual practice. In exercising its discretion the court would look to the particular facts and circumstances of the case and consider whether there is “some special or unusual feature in the case to justify the court in departing from the ordinary practice.”[34]
[33] (1993) 118 ALR 248
[34] Preston v Preston [1982] 1 All ER 41
The father argued that if I was to make an order for costs it should be at scale which is of course the usual practice. The figure at scale would come to $6,454. I am however persuaded that this is a case that warrants a departure from the ordinary practice because the applications were without merit and the property application in particular was doomed to fail. I have taken into account that the father was not legally represented but nonetheless his actions in bringing his application has caused the mother to incur significant costs. I will order indemnity costs in the sum sought by the mother.
Application to have caveat removed
The father appropriately acknowledged that if he was not successful he would need to remove the caveat placed by him on real estate owned by the mother and her partner. To remove any ongoing concerns by the mother however, I will make the order sought by her in that regard.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 9 June 2021
0
16
3