Kenworth & Kenworth
[2023] FedCFamC2F 132
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kenworth & Kenworth [2023] FedCFamC2F 132
File number(s): CAC 2459 of 2018 Judgment of: JUDGE W J NEVILLE Date of judgment: 22 February 2023 Catchwords: FAMILY LAW – Parenting – where the Father has consistently failed to engage in the proceedings – where the Father has sought to re-open proceeding on multiple occasions – where final orders were made that the children live with the Mother and spend time with the Father as agreed between the parties – application dismissed – indemnity costs in favour of the Mother and Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) ss.64B, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s.143(1)
Cases cited: Carriel v Lendrum (2015) 53 Fam LR 157
Mahoney & Dieter [2020] FamCAFC 88
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
Phillips v Hansford (No.2) (2020) 60 Fam LR 160
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725
Shan & Prasad (2020) 61 Fam LR 440
SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Stephens v Stephens (2011) 44 Fam LR 117
Wrenstead & Eades (2016) FLC-697
Division: Division 2 Family Law Number of paragraphs: 41 Date of last submission/s: 11 January 2023 Date of hearing: On the papers in Chambers Place: Canberra Solicitor for the Applicant Self-represented Solicitor for the Respondent Andrew Warren Associates Independent Children’s Lawyer Legal Aid NSW City L Family Law ORDERS
CAC 2459 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KENWORTH
ApplicantAND: MS KENWORTH
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
22 feburary 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Orders 1 and 2 of the Orders dated 29th November 2022 be discharged.
2.The Application in a Proceeding filed 9th December 2022 be summarily dismissed pursuant to s143(1) of the Federal Circuit and Family Court of Australia Act 2021.
3.Within 60 days of the date of these Orders, being by 23 April 2023, the Applicant pay the Independent Children’s Lawyers costs fixed in the sum of $3,500.00.
4.Within 90 days of the date of these Orders, being by 23 May 2023, the Applicant pay the Mother’s costs fixed in the sum of $35,000.00.
5.Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
6.Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
7.The Independent Children’s Lawyer be discharged.
8.All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kenworth & Kenworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
This is a long running parenting and property matter. The parenting matter relates to three children; 13 year old X, 12 year old Y and 10 year old Z. The property aspect settled by consent in September 2019. At that time, the parties agreed to a declaration that they would discontinue the respective parenting Applications then before the Court, on the basis that they would seek to work out parenting issues between themselves. Regrettably, in the absence of the Father’s compliance with the final Consent Orders, some more than reasonable time later, the Mother was required to bring enforcement proceedings in relation to these Orders. The parenting matter has been drawn out, largely due to the Father’s non-compliance with procedural and other Orders, together with his regular non-attendance at Court events. The Father’s engagement with the litigation, especially as the Applicant, has been very “stop-start”, with significant periods of non-engagement and general absence – to speak colloquially.
Factual & Procedural Overview
At a mention on 25th August 2022, the Mother’s lawyer provided a detailed chronology in open Court that highlighted, amongst other things, the regular non-engagement by the Father in these proceedings and in relation to time with arrangements. Par.12(a) – (gg) of the Mother’s submissions regarding costs, filed 17th October 2022, provide a comprehensive summary of the highly problematic non-engagement, and non-compliance by, the Father with the Orders of the Court. A copy of those submissions is annexed to these reasons.
At the listing on 25th August 2022, the Father’s lawyer confirmed she had been unable to get instructions from the Father and sought leave to withdraw; this leave was granted. On that occasion, an Order was made that, absent the Applicant Father filing a confirming Affidavit and Minute of Orders Sought by 15th September 2022, Orders would be made on a final basis for the Mother to have Sole Parental Responsibility for the children, the children to live with the Mother, and that the children spend time with the Father as agreed between the parties in writing.
The Applicant Father did not file a confirming Affidavit or Minute of Orders Sought by 15th September 2022, nor did he communicate in any relevant respect with the Court regarding his intentions. Accordingly, pursuant to the Orders of 25th August 2022, Orders were made on 21st September 2022 in Chambers that the Mother have sole parental Responsibility, the children live with the Mother and spend time with the Father as agreed in writing. The Mother’s lawyer emailed Chambers on 21st September 2022 to advise the Court that the Mother intended to make an Application for costs. Accordingly, the Orders dated 21st September 2022 were amended to including filing directions for submissions with respect to costs.
On 29th November 2022 ex tempore reasons were delivered in relation to costs. On that occasion, the Mother’s advocate submitted that the Parenting Orders made on 21st September 2022 were not final because submissions in relation to costs remained outstanding. An Order was made that absent any other Application within 7 days, those Orders would become final.
In having made this last Order, the Court should not be taken as agreeing with the submission regarding the finality of parenting Orders (simply or solely) because of the outstanding costs Order. Should it need to be stated, a “costs Order”, strictly speaking, is not a “parenting Order”, pursuant to s.64B of the Family Law Act 1975 (Cth) (“the Act”), and also for the obvious reason that “costs” do not, per se, relate to parenting matters. The matter or issue of “costs” is not among the matters defined by s.64B of the Act as constituting a “parenting Order”. Therefore the submission that the Orders of 21st September 2022 were not final because there remained an outstanding costs Order must be rejected. It therefore also follows that the Orders of 21st September 2022 were, in fact, final Orders, which in turn impacts further – and negatively – upon the Father’s attempt to re-open the parenting proceedings.
The Father sought to file an Application in a Proceeding on 5th December 2022, which was processed by the Registry and filed on 9th December 2022. This Application sought to amend the parenting arrangements. Orders were made in Chambers on 13th of December 2022 that absent any formal application within 7 days, the Application in a Proceeding filed 9th December 2022 would be determined in Chambers on the basis of material filed and submissions.
Put shortly:
(a)the skeleton material filed by the Father in support of his Application in a Proceeding seeking, effectively, to re-open the parenting Orders made on 21st September 2022, were more a form of submissions and Orders sought rather than relevant evidence, and disclosed not the slightest hint of any relevant change in circumstances that would satisfy the standard test in Rice & Asplund, particularly as that test has been outlined by the Full Court in decisions such as SPS & PLS (noted further below); and
(b)the occasional, irregular and completely unpredictable engagement of the Father in the litigation has made his conduct for all (the Mother, the Independent Children’s Lawyer (“the ICL”), and the Court) ultimately a costly waste of time, which needlessly consumes everyone’s resources to no positive effect or benefit to the children. The conduct of the Father, together with his impoverished material, which does not assist him at all, at least warrants the Application in a Proceeding to be summarily dismissed, together with a costs Order in favour of both the Mother and the ICL. The limited material filed by the Father, his regular non-attendance at Court events, and his non-compliance with Court Orders, further warrant his latest Application, in the alternative, being dismissed as an abuse of process.
Applicant’s Orders sought
The Applicant’s Orders sought were contained in the Application in a Proceeding filed on 9th December 2022; they were as follows (emphasis in original; grammatical errors remedied and indentation added):
1.To have 50/50 care of [X] 2009, [Y] 2011 and [Z] 2012.
2.To have every second weekend with all 3 kids till 50/50 care is agreed, fri after school till Monday return to school.
3.To provide a mobile phone so all 3 kids can contact me and im able to call them through week days.
4.To have week about this Dec/Jan school holidays. Have, week on week off over the break 2022/23 school holidays Monday till Monday.
5.To have shared time between Father and Mother on xmas day 2022 with all 3 children [X], [Y] and [Z].
6.To have shared time between Father and Mother on birthdays [Z] [in] 2022, [Y] [in] 2022 and [X] [in] 2023.
7.To have orders stopped for [Ms Kenworth] (Mother) to have 100% care of [X], [Y] and [Z] and have 50% care between both Father, Mother so both parents can care for the children, have a life with their kids.
As noted above, the Father’s supporting Affidavit for this latest Application largely set out very similar material and Orders sought as noted in the previous paragraph from the Application itself. As such, the Affidavit provided no evidence to support the Application.
Respondent’s Orders sought
The Respondent’s Orders sought were contained in the Response to an Application in a Proceeding filed 15th December 2022; they were as follows (emphasis in original):
1.That the Application in a Proceeding filed 9 December 2022 be summarily dismissed pursuant to s143(1) of the Federal Circuit and Family Court of Australia Act 2021.
2.That the applicant pay the respondent’s costs on an indemnity basis.
Written Submissions on behalf of the Applicant
The Applicant Father did not file any written submissions. The Applicant Father sent the following email to Chambers on 10th January 2023 (emphasis in original):
Dear your Honour Judge W J Neville
I write to your Honour,
I'm writing due to 2 submission presented Monday 9th January at 2.15 pm from andrew warren / [Ms Kenworth].
Under case cac2459/2018
Stating the family law act states both parents have to right to have the right to be apart [sic] of their Childrens lives.. all I'm asking is to do exactly this ,self representing on my application of proceeding's i ask to have the rights to see my children and to be apart of my life on a regular basis.
Which to date has been a long and negative road to have any certainty of regular time with my kids
I have self represented due to financial had ship and the cost of legal representation.
There would be no court cost accrued for either party if [Ms Kenworth] was to be honourable to allow the children to have quality time with both parties in this case..
The submissions presented are neither for anytime time to granted for our ,my children to be with there father ,dad. no voice for them to be heard ... but for total control to be alienated from myself there father.
Regards
[Mr Kenworth]
[Father’s phone number supplied but removed here]
Written Submissions on behalf of the Respondent
The Respondent Mother’s written submissions were filed on 9th January 2023; they were as follows (emphasis in original):
OUTLINE OF SUBMISSIONS (AS TO THE APPLICANT’S OBLIGATION TO “SHOW CAUSE”)
FILED ON BEHALF OF THE RESPONDENT
This document is prepared in accordance with paragraph 3 of the order of His Honour Judge Neville dated 13 December 2022
1.Final parenting orders were made in this matter on 21 September 2022. In this regard, the respondent refers and relied upon:
a.The Order made 21 September 2022, and
b.The amended Order (under the slip rule) made 21 September 2022, and
c.In particular, the email from Chambers to the parties transmitted 13 December 2022 at 9:58 AM.
2.The 3rd document, being the email from Chambers, makes plain that the parenting matter was finalised on 21 September 2022, and the only reason that there was a reference in the amended order to “Interim Order’ was that the matter was being left open only to deal with costs.
3.Costs, of course, were dealt with by the order made 29 November 2022.
4.The applicant now seeks to file an Application in a Proceeding on 9 December 2022, that is, 49 days after the final orders were made, Seeking, (as best can be discerned) substantive parenting orders including as to where the children live, what time they spend with him, and apparently to vacate (he used the word “stop”) the final Orders made 21 September 2022.
5.The applicant filed in support of his Application in a Proceeding an Affidavit which appears to have been either sworn or affirmed on 2 December 2022.
6.The respondent has filed a Response to the Application in a Proceeding seeking that it be summarily dismissed with costs on an indemnity basis.
The law
7.Three legal questions arise as a result of the Application in a Proceeding.
8.The first is whether the court has power to make the orders sought by way of the Application in a Proceeding.
9.The second is the application of the rule in Rice v Asplund [1978]FamCA 84.
10.The third is whether the Rice and Asplund question should be determined as a threshold question, or at a final hearing.
Submissions as to the 1st legal question, whether the court has power to make the orders sought
11.Given that final parenting orders in the proceedings have been made in the proceedings, the court is now functis officio [sic: functus officio] in relation to those proceedings.
12.There is simply no power available to the court to grant order 7 in the Application in a Proceeding (to “stop” the final parenting orders) unless, perhaps, order 7 could somehow be interested as an application for a stay. Such interpretation could not be supported given the absence of an Appeal.
13.Whilst it is open to the applicant to file fresh proceedings (for a now third time) seeking parenting orders (by Initiating Application, certainly not by way of Application in a Proceeding), were he to do so or be allowed to do so that would lead to the second Rice v Asplund question (see below).
Submissions to the 2nd legal question, the rule in Rice v Asplund [1978] FamCA 84
14.It would be trite in these submissions to recite the rule in that very well-known decision that has been applied on countless occasions over the last 45 years.
15.Simply put, there is nothing in the affidavit filed by the applicant on 9 December 2022 that suggests any change in circumstances since 21 September 2022, nor is there alleged to be any material fact not disclosed in the earlier proceedings which would justice such a serious step as to changing the parenting order.
Submissions as to the 3rd legal question, whether the question in Rice v Asplund should be dealt with at a preliminary hearing.
16.The Full Court in Bennett [1990] FamCA 148 (at [63] confirmed prior rulings that it was discretionary as to whether the rule should be applied as a threshold question, but added that “in some cases, it is not easy to determine the threshold question without going into the merits of the question”.
17.It is submitted that this is not such a case where the merits cannot be determined.
18.In King v Finneran [2001] FamCA 344 Collier J (upholding Ryan FM) held that as the previous order has been made so recently (in that case within a year), the rule in Rice v Asplund should be dealt with at a preliminary hearing.
19.In circumstances where the final parenting order in this matter was made only 49 days prior to the application, it is submitted that the Rice v Asplund question should plainly be dealt with as a threshold question.
20.To not do so would invite litigants to engage in potentially endless litigation and give rise to further substantial and unnecessary costs on the respondent’s part.
OUTLINE OF SUBMISSIONS (AS TO COSTS)
FILED ON BEHALF OF THE RESPONDENT
This document is prepared in accordance with paragraph 3 of the order of His Honour Judge Neville dated 13 December 2022.
1.The court will need to consider the matters set out in section 117(2) of the Act in order to determine the mother’s application for costs. The relevant matters are considered hereunder.
The applicant’s financial circumstances
2.As at the time of filing these submissions, the applicant father has not served any submissions of his own, nor has he filed any evidence as to his financial circumstances.
3.The only assistance the respondent mother can provide to the court as to the applicant father’s financial circumstances are to advise that final property settlement Orders were made by consent on 18 September 2019.
4.As a consequence of those orders, the applicant father received the sum of $20,000, a property of [B Street, Town C], a property at [D Street, Town E], a [Motor Vehicle 1], an [Motor Vehicle 2] recreational vehicle, a [Motor Vehicle 3], a [Motor Vehicle 4], a [Motor Vehicle 5], his superannuation entitlements less a sum split in favour of the wife, and various chattels together with money in his bank account. In 2018.
5.Your Honour would recall that [Mr Kenworth] failed to comply with the Orders and there were subsequent successful enforcement proceedings brought by [Ms Kenworth] that resulted in costs orders being made against [Mr Kenworth].
6.It is impossible for the respondent mother to advise the court any more about the applicant’s financial circumstances than this.
The respondent mother’s financial circumstances
7.These are set out in her Financial Statement filed 17 October 2022. Nothing of substance has changed since that time. They show that she has a very modest assets and income, and is effectively the sole carer for three children. The father is in excess of $4700 in default in relation to his child support obligations.
Legal Aid
8.[Ms Kenworth] has never been legally aided. If [Mr Kenworth] has been, no notification of this has ever been given to the respondent.
The conduct of the parties
9.It is submitted that the conduct of the applicant father throughout these proceedings has been completely deleterious and outrageous.
10.In view of the brevity required of these submissions, the mother does not repeat (but does rely upon) the analysis of his conduct which is set out in some detail in paragraph 11 of her Costs Submissions filed 18 October 2022.
11.However, it is relevant to his further conduct in filing the current Application in a Proceeding that this is the second time the applicant has attempted to reopen by way of interim application finalised parenting proceedings.
a.[Mr Kenworth] commenced parenting proceedings CAC2459 in 2018.
b.He consented to those proceedings being discontinued and this was reflected in the Orders made 18 September 2019.
c.On 29 April 2020 he filed an Application in a Case seeking to (impossibly) revive his earlier discontinued parenting application.
d.On 15 October 2020 that Application in a Case was summarily dismissed, (ultimately with costs) and the father was given the opportunity to file the Initiating Application which has led to the current parenting Order.
12.With the greatest of respect, the applicant does not appear to have learnt from this previous experience.
13.The respondent mother should not be obliged to bear the costs of the applicant repeatedly filing applications doomed to failure.
1.117(2A)(e)
14.If the orders sought by the Mother in her Response to the Application in a Proceeding are made, then the father will have been wholly unsuccessful in the proceedings.
Costs incurred by the mother.
15.The mother has incurred costs and disbursements at the time of drafting these submissions in the sum of $3,442.67.
Indemnity costs
16.It is submitted that the conduct of the applicant is such that indemnity costs are warranted. The applicant’s case was hopeless (as he should have been aware of that given the orders made 29 April 2020 when he attempted a similar reopening of a finalised matter), and borders on an abuse of process given that the final orders were made only 49 days prior, and he advanced no evidence whatsoever in support of the Rice v Aplund issue.
17.His conduct in relation to this application in a proceeding should also be viewed in the context of his conduct since 2018 in these proceedings which has already been dealt with in the wife’s submissions as to costs filed 18 October 2022.
Written Submissions on behalf of the Independent Children’s Lawyer
The Independent Children’s Lawyer’s written submissions were filed on 11th January 2023; they were as follows (emphasis in original):
SUBMISSIONS
1.Final parenting orders were made for [X], [Y] and [Z] on 21 September 2022. These were then amended pursuant to the slip rule. The orders at that time were made final pending the issue of costs being resolved on 29 November 2022.
2.[Mr Kenworth] had legal representation that ceased on 30 May 2022 and again on 25 August 2022. [Mr Kenworth] was not in attendance at Court events for a reasonable length of time prior to the final parenting orders being made on 21 September 2022.
3.There was no compliance by [Mr Kenworth] in respect of orders made by the Court on 25 August 2022 regarding his filing of evidence and a proposed minute of order sought by him before 15 September 2022.
4.[Mr Kenworth] was in attendance at Court on 29 November 2022 at which time the Court gave judgement and made orders in relation to costs. On that day, [Mr Kenworth] was given a further opportunity to file any other application regarding parenting orders by 6 December 2022.
5. [Mr Kenworth] filed such an application late on 9 December 2022.
6.It is noted that [Mr Kenworth] is unrepresented. It is also noted that the relief [Mr Kenworth] seeks is ultimately for equal time parenting arrangements.
7.The parties participated in the preparation of a child inclusive memorandum in July 2021. The recommendations of the Child Court Expert were that the children spend regular time with the father by way of each alternate weekend. [X] expressed very clear views about her relationship with her father and not being willing to spend substantial amounts of time with [Mr Kenworth]. Family therapy was recommended for [X].
8.The parties participated in two forms of mediation during the course of the ICL involvement in proceedings. Neither resulted in meaningful resolution.
9.While it is absolutely appropriate for these children to have the benefit of a meaningful relationship with both parents, it is evident that the parenting dispute, as it has been both historically and at the time of final orders, remains ongoing and this leaves the ICL concerned that the children will continue to be exposed to parental conflict.
10.The ICL is further concerned with the likely impact upon the children of ongoing litigation.
11.[Mr Kenworth]’s Application does not plead any change in the circumstances nor bring to the Court’s attention further evidence that was not previously filed which leaves the Court with little to consider in accordance with the principles set out in Rice and Asplund [1978] FamCA 84.
12.The ICL appointment has not been extended beyond final orders and further the ICL has not been able to meet with the children to discuss both final orders made on 21 September 2022 or the Application in a Proceeding filed by [Mr Kenworth] as arrangements are yet to be agreed upon.
13.The ICL is therefore in a limited capacity to assist the Court further in relation to these proceedings.
Outline of Principle & resolution – parenting
Here I will outline basic principles regarding the re-opening of matters relating to parenting. I will also set out principles regarding costs. What follows should be considered to be in addition to the earlier comments regarding the operation of s.64B of the Act and the definition of “parenting Order.” That section provides as follows:
Meaning of parenting order and related terms
(1) A parenting order is:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order.
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note: Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
(3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.
(4) The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:
(a) letter; and
(b) telephone, email or any other electronic means.
(4A) Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:
(a) resolving any dispute about the terms or operation of the order; or
(b) reaching agreement about changes to be made to the order.
(5) To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order.
(6) For the purposes of this Act:
(a) a parenting order that provides that a child is to live with a person is made in favour ofthat person; and
(b) a parenting order that provides that a child is to spend time with a person is made in favour of that person; and
(c) a parenting order that provides that a child is to have communication with a person is made in favour of that person; and
(d) a parenting order that:
(i) allocates parental responsibility for a child to a person; or
(ii) provides that a person is to share parental responsibility for a child with another person;
is made in favour of that person.
(9) In this section:
this Act includes the applicable Rules of Court.
As the section makes plain, there is no reference at all to “costs” regarding a parenting Order. Therefore, the Orders made on 21st September 2022 were, in fact, final parenting Orders and were not affected at all by the subsequent Application by the Mother for costs. On its own, the operation of s.64B of the Act was and is sufficient to warrant the Father’s Application to be dismissed. For completeness, however, I note the following additional or alternative grounds that warrant the Father’s Application to be dismissed.
Regarding the principles relating to Rice & Asplund and any change to parenting Orders, I note the following (as an observation, nothing more, the Mother’s submissions refer to a number of authorities that are, respectfully, very dated).[1]
[1] Rice & Asplund (1979) FLC ¶90-725.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[2] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows:[3]
[2] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[3] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[48] In my view, reflection on the rule shows that:
What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
“Shorthand” statements of the rule may contribute to its misapplication.
Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
[81] …in 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.
In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[4] Among other things, the Court there said, at [72] (emphasis added):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[4] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and then at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[5]
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:
(i) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(ii) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(iii) 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.
[5] Marsden v Winch (2010) 42 Fam LR 1.
In 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[6] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[6] Poisat & Poisat (2014) FLC 93-597.
Recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[7] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[7] Carriel v Lendrum (2015) 53 Fam LR 157. More recently still, see the brief comments by the Full Court in Phillips v Hansford (No.2) (2020) 60 Fam LR 160 at [29] – [34].
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to 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.”
Finally, in Mahoney & Dieter, the Full Court said, at [49] (emphasis added):[8]
… we should emphasise that the magnitude of the variation of the parenting orders sought to be achieved in the fresh proceedings, necessarily informs the nature of change of circumstances sufficient to justify that re-litigation. Here, the mother was seeking a complete reversal of the child’s living arrangements, rather than merely some minor tinkering or slender change to the New Zealand orders. Therefore, the nature of the change in circumstances needed to be of sufficient gravity to warrant the wholesale re-litigation of the child’s living arrangements. On no view did the mother’s claims come close to demonstrating a sufficient change. Taking her case at its highest, it had no reasonable likelihood of success.
[8] Mahoney & Dieter [2020] FamCAFC 88. Such matters were originally canvassed by Warnick J in SPS & PLS (2008) 217 FLR 164 especially at [48].
The last sentence in the Full Court’s decision in Mahoney & Dieter is sufficient to dispose of the Father’s Application. Taken at its highest, indeed its very highest, it provides no relevant evidence of any change in circumstances upon which the Court could remotely reconsider the existing parenting Orders. Further, the ICL’s submissions neatly highlight a number of other significant impediments to the Court re-considering the parenting Orders, notably but not only in relation to X. Not only would the Orders sought by the Father not be in the best interests of the children, they would be adverse to their best interests, especially of X.
Finally, the litigation must end. It helps no one, especially the children, for their parents so regularly to be entangled in litigation. Nor does it assist the privately funded Mother, who keeps incurring legal costs as a result of the Father’s various and random and unsupported Applications, to provide for the children, notably where the Father is so far behind in his child support payments.
For these reasons, the Father’s Application filed on 9th December 2022 must be dismissed because (a) there is no relevant change in circumstances that would satisfy the rule in Rice & Asplund, (b) in fact, the Father provided no evidence at all in support of his late-filed Application, and (c) the basic considerations regarding summary dismissal under s.143(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) otherwise apply.
Having regard to the plethora of Applications filed in the matter, for more abundant caution, there should be a further, general Order whereby any and all other outstanding Applications will also be dismissed. I now turn to the issue of costs.
Outline of principle & resolution – costs
Pursuant to s.117(1) of the Family Law Act 1975 (Cth) (“the Act”) the general rule in family law litigation is that each party bears his or her own costs. However, section 117(2) provides (by reference to s.117(2A)) that a Court may apply its discretion and make such Order for costs as it considers just if “the court is of opinion that there are circumstances that justify it in doing so”.
The statutory and jurisprudential considerations in relation to making (or not making) Orders for costs are well known. Although well known, it is sufficient to note the following from the Full Court decision in Stephens v Stephens.[9] Beginning at [62], the Full Court said (emphasis added):
[9] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41] :
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. 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.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
In the same case, the Full Court commented summarily on the award of indemnity costs, relevantly at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
In the light of these principles, I note the following.
As the authorities noted above set out, the factors for the Court in considering whether to make a costs Order are laid out in subsections 117(2A)(a) – (g) of the Act. The cases noted above make plain that a single factor alone is sufficient to provide the basis for a costs Order. On the well documented facts here, and in the light of the history of the matter, there are multiple grounds upon which a costs Order in the Mother’s favour should be made. Some of the relevant matters here include the Father’s regular failure to file material in accordance with Orders, his failure regularly to attend at Court events, and thereby the ongoing costs that have been incurred by the Mother.
The range of matters noted earlier in these reasons adverse to the Father are also, in my view, more than sufficient to warrant the making of an indemnity costs Order against him. This said, and notwithstanding the lack of evidence regarding his financial circumstances, his default in paying child support may be taken into account.[10]
[10] In addition to the authorities noted above, particularly on the matters now considered, see also the Full Court’s discussion in Wrenstead & Eades (2016) FLC-697.
Put summarily, the Father has been wholly unsuccessful; his conduct as a litigant has put the Mother, and the ICL, to needless expense and the expenditure of resources (notably “time”, among other things).
In conclusion, I should note, perhaps in passing that the Mother’s Costs Notice records a concerningly high level of costs she has incurred. However, it is difficult to assess properly or fairly what might otherwise be allowed on a taxation, particularly because the Mother’s costs clearly relate to both parenting and property matters. In such circumstances, and without requiring the Mother to be put to further expense and delay in having a Bill of Costs drawn up and formally taxed, in my view, the sums set out below for the ICL’s costs, and those of the Mother, are the most appropriate and are designed to bring to a quicker end these long-running proceedings.
In addition to these reasons, otherwise, I accept the submissions on behalf of the ICL and the Mother in relation to the Father’s Application and in relation to the separate issue of costs.
Formally, I discharge all previous Orders in relation to costs, and make the following Orders regarding same: the Father is to pay the ICL’s cost fixed in the sum of $3,500.00 within 60 days, and pay the Mother costs, fixed in the sum of $35,000.00 within 90 days.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 22 February 2023
ANNEXURE A
a.[Mr Kenworth] commenced parenting proceedings in 2018.
b.He consented to those proceedings being discontinued and this was reflected in the Orders made 18 September 2019.
c.On 29 April 2020 he filed an Application in a Case seeking to (impossibly) revive his earlier discontinued parenting application.
d.On 15 October 2020 that Application in a Case was summarily dismissed, the mother’s costs were reserved, and the father was ordered to file an Initiating Application.
e.The mother’s costs of that Application in a Case remain reserved. Those costs are sought as part of this application.
f.The father then did file his Initiating Application on 12 November 2020. Simultaneously, he filed an affidavit. No further evidence was ever filed by him.
g.On 15 December 2020 the mother filed an Application in a Case seeking urgent orders restraining the father from continuing to publish material commenting about these proceedings and identifying the children on social media.
h.On 22 March 2021 an injunction as sought by the mother was granted against the father to restrain him from so behaving, and her costs in relation to that Application in a Case were reserved. Those costs remain reserved. Those costs are also sought as part of this application.
i.On 22 March 2021 [M Law Firm] filed a Notice of Appearance for the father.
j.On 1 July 2021 [M Law Firm] filed a Notice of Withdrawal.
k.On 27 July 2021 [G Law Firm] filed a Notice of Appearance to act for the father.
l.On 29 July 2021 the applicant father filed an Amended Initiating Application seeking final and interim Orders.
m.On 30 July 2021, on one day’ s notice of the father’s interim application, same was listed for hearing before [SJR F] on 27 October 2021.
n.The parties attended mediation on 25 October 2021.
o.On 26 October 2021 an unequivocal acceptance of a proposal put by the mother to resolve the interim proceedings was received from the father’s solicitor. A request was made for the mother’s solicitor to prepare a Minute of Consent Order. This was done and submitted to the father’s solicitor.
p.At 6:12 PM on 26 October 2021, the night before the interim hearing, the father’s solicitor emailed the mother’s solicitor advising that the father would no longer agree to the orders that he had already unequivocally agreed to. At 6:40 PM that night he filed an Outline of Case and Minute of Orders sought.
q.The next morning, 27 October 2021, the applicant father sought to proceed with his interim application. The fact that he had not filed any evidence in support of his interim application led [SJR F] to indicate to his lawyer that he would be unsuccessful. His behaviour in withdrawing at the last minute from his unequivocal agreement to settle the matter was brought to the court’s attention. Negotiations were then entered into and Interim Orders were made by consent on 27 October 2021.
r.The 27 October 2021 orders included a requirement for the parties to attend family therapy and for the father to undettake certain parenting courses. After the orders were made, the applicant’s solicitor was requested on multiple occasions to provide draft terms of reference to the therapist. They failed to do this.
s.By 10 February 2022 the parties still had not attended family therapy, given the father’s lawyer’s failure to provide terms of reference which had been repeatedly requested.
t.On 10 February 2022 Orders were made for interim time by consent, and specific Orders were made in relation to the parties’ attendance at family therapy, including Orders for the parties to make appointments to attend upon the therapist.
u.The mother complied with her obligations to make an appointment with the therapist. The father never did.
v.The mother also complied with her obligations under order 3 of those Orders to arrange an appointment with [H] Family Psychology. Whilst the father was also obliged under the Order to participate in that, he never did.
w.The mother also complied with her obligations to forward all of her documentation to the family therapist (order 3). The father never did.
x.In April 2020 the parties met informally and reached agreement as to final resolution of these proceedings.
y.On May 2022 the mother’s solicitor drafted a Minute of Consent Orders reflecting their agreement and forwarded them to the Independent Children’s Lawyer and the father’s solicitor.
z.Despite requests, no response was ever received from the father’s solicitor. To be abundantly clear, the father has never indicated he was unwilling to sign the Minute of Order – there has simply never been any response at all from his lawyers despite repeated requests.
aa.On 17 June 2022 the matter was listed for directions before His Honour Judge Mansfield. The father failed to appear. .
bb.On 20 June 2022 a Notice of Address for Service was filed by [J Law Firm], this being the father’s third lawyer in these parenting proceedings.
cc.Despite being instructed, still no response was ever received from [J Law Firm] in relation to the final Memorandum of Consent Orders that had been forwarded to the father’s solicitors back on 4 May 2022.
dd.On 25 August 2022 the matter was before the court, and [Ms J] attended on behalf the father, only to seek leave to withdraw.
ee.The father has not complied with the orders of 25 August 2022.
ff.Despite the interim orders of 10 February 2022 which provided for the father to spend time with the children, the time that he has spent with them has been sporadic, he has repeatedly cancelled that time, he has not completed the parenting courses that he was ordered to complete, nor has he made any attempts to engage in the proceedings or to engage with the obligations with respect to family therapy or [X]’s counsellor.
gg.In simple terms, these proceedings have been nothing but a waste of court resources and have occasioned the mother very significant costs.
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