Janz and Janz
[2007] FMCAfam 876
•26 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JANZ & JANZ | [2007] FMCAfam 876 |
| FAMILY LAW – Parenting orders – application to vary earlier final parenting orders – application for summary dismissal of that application – test to be applied. |
| Rice & Asplund (1979) FLC 90-725 Cortes & Cabrera [2007] FMCAfam 293 Bennett & Bennett (1991) FLC 92-191 King & Finneran (2001) FLC 93-079 F & C [2004] FamCA 568 R & BH [2006] FamCA 919 Saad & Saad (1993) FLC 92-332 |
| Applicant: | MS JANZ |
| Respondent: | MR JANZ |
| File number: | BRC2587 of 2007 |
| Judgment of: | Wilson FM |
| Hearing date: | 18 September 2007 |
| Date of last submission: | 23 October 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 26 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Clive Speakman Solicitors |
| Counsel for the Respondent: | Ms Scott-MacKenzie |
| Solicitors for the Respondent: | Mylne Lawyers |
ORDERS
The mother’s application filed 30 August 2007, for summary dismissal of the father’s application for parenting orders, be dismissed.
The threshold question of whether the court ought re-examine the parenting orders be determined as a preliminary issue
The matter be listed for hearing of the preliminary issue on a date to be advised.
IT IS NOTED that publication of this judgment under the pseudonym Janz & Janz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 2587 of 2007
| MS JANZ |
Applicant
And
| MR JANZ |
Respondent
REASONS FOR JUDGMENT
On 17 July, 2007 the respondent husband/father filed an amended response, by which he sought parenting orders in respect of two children of the marriage: [X], born [in] 1998, and [Y], born [in] 2000. By her application filed 30 August 2007, the wife/mother sought summary dismissal of the father’s application for further parenting orders. I made directions on 18 September 2007 to facilitate the early determination of the application for summary dismissal. In compliance with those directions, the applicant mother filed submissions (albeit 10 days late). The father’s submissions were not received by me until
23 October 2007, despite him being ordered to file them by
28 September 2007.
The basis of the mother’s application is that consent parenting orders were made in the Family Court of Australia on 30 March 2006, and the father has not established any basis for varying or discharging those orders.
On 30 March 2006 consent orders were made by a Registrar of the Family Court of Australia. Relevantly, those orders provided:
(1)That the children of the marriage, [X] born [in] 1998 and [Y] born [in] 2000 reside with the mother.
(2)That the father have contact with the children at such time as may be agreed to between the parties including but not limited to the following:
(a)Commencing Friday the 31st March 2006 and each alternate Friday thereafter during school term time from after school on Friday, with the father to collect the children from school, until 3:00 pm on the following Saturday;
(b)From Friday the 7th April 2006 and each alternate Friday thereafter during school term time from after school on Friday, with the father to collect the children from school, until before school on Monday, with the father to return the children to school at the conclusion of contact;
(c)In the event of the weekends being one in which the Friday is a public holiday, then the contact commence on the Thursday afternoon after school and in the event of the weekend being a weekend where the Monday is a public holiday, then when the father would normally return the children to school on the Monday, he will return them to school on the Tuesday morning;
(d)One half of all school holidays with the father to have the first half of the school holidays in 2006 and the second half in 2007 and alternating thereafter;
(e)That the party who has the children during the first half of the Christmas holidays will have the children on Christmas Day in each year;
(f)That each of the parties be entitled to see the children on each of the party’s respective birthdays and the children’s respective birthdays such that the party with whom the children are not staying on the day of the relevant birthday, will see the children for a period of half a day if the birthday falls on a weekend or other holiday and for a period of no less than two hours if the birthday falls on a school day;
(g)From 9:00 am to 5:00 pm on Father’s Day if Father’s Day does not fall on a contact weekend, provided that if Mother’s Day falls on a contact weekend the father shall return the children to the mother by 9:00 am on Sunday on Mother’s Day and they will remain with the mother for the rest of the day;
(h)Telephone contact as agreed between the parties.
(3)That the parties be jointly responsible for the long term care, welfare and development of the children.
(4)That each of the parties be responsible for the day to day care, welfare and development of the children whilst they are in their respective care.
(5)That the mother and father will keep each other appraised at all times of their respective residential addresses and all of their respective telephone numbers and will advise the other in writing no less than seven days prior to changing the residential address and telephone number.
(6)That each parent shall at all times keep the other informed regarding any medical emergency or treatment administered to the said children whilst in the care of that parent.
(7)This order is an authority for any Principals or class teachers of any school attended by the children to provide to the parties any information, school reports, notices to parents or circulars as required by the parties. The parties will both be entitled to attend all of the children’s school or sporting functions.
The mother, as I have said, seeks to summarily dismiss the father’s application for parenting orders, which seek orders that the children live with him and spend time with the mother. It is evident from the written submissions of both parties that there is confusion as to the procedure being adopted and the appropriate test to be applied by the court. For example, in the wife’s submissions, it is said, at paragraphs 32 – 33:
“32. The wife’s application is for summary dismissal. If her application is not upheld, the matter is to proceed to a determination at a subsequent hearing in November 2007, and no doubt consistent with generally accepted practice, review the matter on the basis of a threshold issue (whether the husband has met the threshold) and if so, proceed to a final hearing thereafter on the basis of the usual processes as relate to the children.
33. These submissions are not made on the basis of any threshold issue determination. It is noted that the practice to deal with the threshold issue independently or at the trial of the matter remains a discretion for the Court. That need not be advanced further here.”
Yet the wife’s submissions go on at paragraph 34 to say that she relies on the principles commonly referred to as the rule in Rice & Asplund (1979) FLC 90-725 and makes submissions in relation to it, on the facts of this case. As I will shortly explain, the rule in Rice & Asplund is often referred to as imposing a threshold to the invocation of the court’s power to revisit earlier final parenting orders.
The husband, on the other hand, refers at length to the authorities dealing with applications for summary dismissal or the striking out of proceedings before a hearing. The present application is to be distinguished from the type of case where an application for summary dismissal is made before any determination has been made by a court. In this case, final consent orders were made on 30 March 2006. Therefore, the wife is not saying that the husband has no cause of action, or cannot succeed in invoking the court’s jurisdiction. She must be submitting that the court should not re-open an issue that has already been decided, albeit by the consent of the parties. There is no suggestion in this case that the consent of either party was not freely given.
I reviewed the authorities pertaining to the approach to be taken by the court when one party seeks to re-agitate parenting orders for children where earlier final parenting orders had been made in Cortes & Cabrera [2007] FMCAfam 293.
The threshold issue, as I have described it, is often ascribed to the decision of the Full Court of the Family Court in Rice & Asplund (1979) FLC 90-725, although the principle predates that decision. The Act permits the Court, by s.65D, to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. There are, however, no guidelines in the Act as to when a Court may refuse to entertain an application for variation or discharge of an existing order. The Act does not prescribe the matters that the Court should consider in determining whether or not to exercise its jurisdiction to so act.
In Rice & Asplund Evatt CJ said at pp.78,905-6:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstances which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submissions, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.”
There the Full Court stated that these were not matters for a preliminary submission. However, later cases have ameliorated that position. In Bennett & Bennett (1991) FLC 92-191 the Full Court of the Family Court said, in a joint judgment, at p.78,262:
“As to the second point, it is, we think, a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. This is in no way to derogate from the general principle expressed by the Full Court in Rice and Asplund (1979) FLC 90-725, and in Zabaneh and Zabaneh (1986) FLC 91-766, that fresh application for custody should not be entertained unless there exists a substantial change in circumstances. In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown. The fact that the determination as to whether or not to deal with a change in circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of Lowe v Lowe (6 April 1990).”
In King & Finneran (2001) FLC 93-079 at p.88,367 Collier J said:
“40. Clearly, in Rice and Asplund itself and the following authorities, there is no indication or guideline as to the manner in which the court is to reach its determination as to whether or not the matter will be dealt with as a threshold test.
41. The rule in Rice and 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 maters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or as I understand the appellant’s submissions at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. The husband’s line of argument in this regard is flawed. It is not the case that an application of the Rice and Asplund test divides or compartmentalises a matter into a threshold component and a merit component. It is clear that a trial judge has a discretion as to whether or not a deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191).
44. To apply the test in Rice and 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 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. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
…
49. Clearly, both words indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and required the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.”
In F & C [2004] FamCA 568 at [45] the Full Family Court added a caveat to the observations of Collier J. Their Honours thought that similar considerations to those referred to by the High Court in CDJ v VAJ (1998) 197 CLR 172 at 204 should be applied in determining whether or not to permit the reopening of previously settled parenting issues.
Finally, in R & BH [2006] FamCA 919, the Full Family Court dealt with an application for summary dismissal of an application to vary earlier parenting orders. Their Honours at [32] said:
“32. We accept as an appropriate exposition of the law the observations of the Full Court in Bolitho v Cohen (2005) FLC 93-224. When discussing the application of the principles in Rice and Asplund the Court said:
44. In King v Finneran, a case decided after the Family Law Reform Act 1995 (Cth), Collier J, when discussing the nature of the change required to warrant further consideration of a fresh application at 88,368, said:
“The words in any event are not words of necessarily strict dictionary definition. In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong (sic) in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.”
45.We agree with and adopt the principles espoused by Collier J in King v Finneran set out above.”
In my view, the above authorities amply demonstrate that before the court will entertain an application to vary or discharge existing parenting orders, the applicant must show changed circumstances of sufficient significance to warrant the court embarking again on the determination of what parenting orders should be made in the best interests of the children concerned. After all, the principles discussed in the above cases all stem from the notion that it is not in the best interests of children for their parents to be continually or regularly
re-litigating parenting issues. It is only where the changed circumstances are such as to impact on the best interests of the children, that the court will even consider varying earlier orders made.
An application to vary or discharge existing parenting orders does not require the court to once again embark on a contested hearing, as if the matter were being determined for the first time. That would defeat the purpose of requiring an applicant to variation of orders to overcome a threshold. It is plain that the court retains a discretion as to how to deal with this threshold issue. It can either do so separately and in advance of a contested hearing on the merits, or it can do so as part of such a contested hearing.
What the cases do not make clear is the process that the court should follow if it decides the threshold question in advance on a preliminary basis. That is, should the application be dealt with as on a demurrer or strike out application, and the court only look at the material of the applicant and decide, on that material alone, whether, assuming it is accepted, there is sufficient evidence to warrant the earlier orders being revisited. Or should the court treat the application similarly to a summary judgment application, and look at the material of both sides, and decide whether there is a serious issue raised which justifies the earlier orders being revisited. Or should the court effectively conduct a trial on the preliminary issue, with evidence and cross examination on the alleged change in circumstances.
There is some guidance as to the approach to be adopted. In R & B H, supra, the use of language that the court should be left in no doubt that it is necessary to revisit the parenting orders supports a critical analysis of the applicant’s material. Although the passage from King & Finneran seems to suggest that court looks at all material then available to the court, which encompasses the material from both sides, it seems to me that the court should logically follow a three step process, sequentially dealing with the three questions articulated in paragraph 18 above. Each case will vary of course as to the stage at which the decision can be made that there is/is not sufficient evidence to warrant a re-opening of the parenting issues. As the learned authors of Australian Family Law & Practice, Brown & Fowler, observe at [16-360], the Full Court of the Family Court has made it clear that the question of whether there were circumstances which required a reconsideration of a parenting issue might, but need not, be determined as a preliminary issue. However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes circumstances existed. An applicant’s material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant’s material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent’s material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.
In Saad & Saad (1993) FLC 92-332 the Full Court of the Family Court said, at pp.79, 519-520;
“As to the proceedings before her Honour, it seems to us that the following were the relevant basic principles upon which the husband’s application fell to be determined: -
(1) Those proceedings were not an appeal from the orders of Burton J. of 6 June, 1989, which the husband was seeking to have varied or discharged. Accordingly, her Honour was precluded from considering whether those orders were validly made, either as a matter of law or as a matter of the exercise of discretion, by Burton, J. On the contrary, she was obliged to regard those orders as having been validly and correctly made in the proper exercise by Burton, J. of the discretion vested in him and upon the evidence which was before him at that time.
(2) Whilst s. 64(7) of the Family Law Act 1976 (“the Act”) gives this Court, in its original jurisdiction, the power to discharge or vary an order made under s. 64 (i.e. an order made in proceedings in relation to the custody, guardianship or welfare of, or access to, a child – see s. 64(1)), that power is not at large in the sense of empowering one Judge exercising the original jurisdiction of the Court to vary or discharge an order made by another Judge in the exercise of that jurisdiction merely because he or she disagrees with it or finds its effects unpalatable. On the contrary, a Judge asked to vary or discharge an earlier order of the Court under that sub-section may do so only if he or she is satisfied that it should now be varied or discharged having regard to any changed circumstances or new circumstances which have arisen since the making of the earlier order and to the welfare of the child which, by s. 64(1)(a) of the Act, the Court is required to regard as the paramount consideration in any such proceedings.
(3) Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the Court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC 91-857.)
(4) It was therefore not for the wife to adduce evidence sufficient to satisfy her Honour that Burton, J’s orders should continue in force, but rather for the husband to at least place before her evidence sufficient to justify a reconsideration of those orders, and only if that were done was her Honour called upon to decide, in the exercise of her discretion, whether the welfare of the child required the discharge or variation of those orders, or their continuance.
(5) Even if it be assumed that the orders of Burton, J. which the husband was seeking to have varied or discharged, or some of them (specifically orders 6(c) and (d) thereof) were made, not pursuant to s. 64(1)(c) of the Act, but pursuant to s. 70C(2) or s. 114(3) (the ancillary injunctive powers of the Court), the husband as the applicant for variation or discharge of those orders would be in no better position as regards the basic principles applicable to the determination of his application outlined in (2), (3) and (4) above. The Act contains no specific grant of power to the Court, similar to that contained in s. 64(7), to vary or discharge an injunctive order made under either of those sub-sections. It may probably safely be assumed that the Court has an inherent power to dissolve an interim or interlocutory injunction granted under wither sub-section in the event that the circumstances which necessitated the granting of that injunction cease to exist, or that new circumstances arise or are disclosed to the Court which make it no longer appropriate for injunction to be continued: c.f. Philip Morris Incorporated v Adam P. Brown Male Fashions Pty. Ltd. (1980) 44 FLR 88 at pp. 99 & 111. In our view, however, paragraphs 6(c) and (d) of Burton, J’s orders were not interim or interlocutory in character, but “final”, notwithstanding their being expressed to continue “until further order”. There appears to be little authority, in England or Australia, upon the power of a court to dissolve a final injunction, and such authority as there is suggests that, at best, such an injunction may be dissolved only where the foundation for it has been removed by subsequent events: see, for example, Commonwealth Scientific and Industrial Research Organisation v. Perry (1988) 92 FLR 182, where the passage of statute authorising conduct that had previously been considered tortious was held, by the Full Court of the Supreme Court of South Australia, to require the Court to accede to an application for the dissolution of an injunction granted prior to the passage of that legislation restraining conduct of that kind.
(6) In determining the husband’s application, her Honour was entitled to have regard not only to the evidence placed before her by the parties and to the orders of Burton, J. which she was being asked to vary, but also, for the purpose of deciding whether there had been any relevant change of circumstances since the making of those orders, to Burton J’s published reasons for making them, and to any other relevant orders of the Court to which her attention was directed by the parties or by the material before her. Had there been in existence a transcript of the proceedings before Burton, J. leading to his orders of 6 June, 1989, she would have been entitled to have regard to that also, or at least to those parts of it which related to the orders which she was being asked to vary or discharge. If there was such a transcript, neither party sought to direct her Honour’s attention to any part of it.
(7) Subject to the application by her Honour of those basic principles, her determination of the husband’s application was an exercise of judicial discretion fettered only by her duty to proceed regularly according to law and to the practice and procedure of the Court, and by her obligation to regard the welfare of the child R as the paramount consideration.”
In my view, it is appropriate to examine only the material of the applicant and ask whether, if that evidence was entirely accepted, the court could vary or discharge the existing parenting orders. If not, there is no reason why proceedings ought not be summarily dismissed. Such a process is not strictly one for summary dismissal in the sense of striking out the applicant’s proceeding, but it does amount to a summary determination of it. I should add that, in my view, a very clear case must be shown for summary dismissal. It is quite one thing for the court to decide the threshold issue as a preliminary issue, after hearing from both sides. It is quite another to foreclose the application on the basis that a court could not (as opposed to might not) be satisfied that the threshold has been overcome.
The husband says a number of events have occurred since 30 March 2006 that warrant the court revisiting parenting orders. They seem to as follows:
a)9 March 2007 [Y] was hit by the mother so as to cause bruising, and the mother has been charged with a criminal offence as a result;
b)14 March 2007 the mother’s partner threatened the father;
c)12 April 2007 as an example of a pattern of behaviour, the mother went out at night leaving the children at home alone. This is alleged to have occurred over the months since March 2006 as well;
d)18 April 2007 the mother sent the father an SMS requiring him to look after the children for three months, then taking them back; and broken glass was found in one of their bags.
The first incident that is alleged to have occurred happened on 9 March 2007. The child [Y] complained of being sore, and the father took her to a doctor. The doctor is said to have contacted the Department of Child Safety, who in turn contacted the police. In a statement to police, exhibited to his affidavit filed 17 July 2007, the father alleges that the child said that her mother had hit her with a wooden spoon. He observed bruising on [Y]’s arms, lower back and buttocks. [X]’s buttocks were bruised as well and he said that he had been hit as well. The father took them to the [omitted] Medical Surgery.
The second incident that is alleged to have occurred happened on
14 March 2007. The father alleges that the mother’s partner Mr B threatened him at his (the father’s) home. The father says that he is concerned about Mr B’s behaviour, especially when he is around the children.
Thirdly, the father deposes that on 18 April 2007 he received an SMS message from the mother wherein she told the father that he should have care of the children from 27 April until 16 July, 2007. The father says that he did so until June 2007 when the mother reclaimed the children and took them on a holiday to South Africa. The mother says that she asked the father to look after the children for six weeks because she was having an operation. When the children arrived broken glass was found in one of their bags.
Fourthly, the father complains that the mother does not properly supervise the children and instances an event on 12 April 2007 when the mother allegedly waited until the children were asleep and then went to a casino. The father says this has happened on a number of occasions.
The father also raised concerns about the children’s exposure to inappropriate adult material, but accepts that these matters were current at the time the previous consent orders were made and would not justify court revisiting the earlier parenting orders.
In my view, the evidence of the father, looked at in isolation and accepted in its entirety cannot be said to be so hopeless, or so deficient that a court could not re-examine the appropriateness of the existing parenting orders. If accepted, the evidence may support a finding that it is not in the best interests of the children to live with the mother in circumstances where she has imposed inappropriate physical discipline and has neglected them.
Accordingly, I must dismiss the application for summary dismissal. I consider that it is appropriate that the threshold issue be determined as a preliminary question, with each party being cross-examined. I will hear the parties as to appropriate directions in that regard.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 26 October 2007
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