KEVINS and HOBSON & ANOR
[2015] FCWAM 147
•16 JULY 2015
JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: KEVINS and HOBSON & ANOR [2015] FCWAM 147
CORAM: KAESER M
HEARD: 4 FEBRUARY 2015
DELIVERED : 16 JULY 2015
FILE NO/S: PTW 6565 of 2009
BETWEEN: MRS KEVINS
Applicant
AND
MR HOBSON
First RespondentAND
MS KEVINS
Second Respondent
Catchwords:
Summary dismissal; Rice v Asplund rule; previous proceedings involving mother and father; current application by grandmother; previous final orders made by default; application permitted to proceed.
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr Klicker
First Respondent : Mr Nicholls QC
Second Respondent : Self Represented Litigant
Independent Children's Lawyer : Not Required
Solicitors:
Applicant: Beacon Family Law
First Respondent : Butlers
Second Respondent : GG Legal
Independent Children's Lawyer : Legal Aid WA
Case(s) referred to in judgment(s):
Carriel & Lendrum (2015) FLC 93-640
Cortes & Cabrera [2007] FMCAFam 293
McLean v Navi [2012] FMCAFam 1025
Miller & Harrington (2008) FLC 93-383
Miller & Harrington [2008] FamCAFC 150
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
History prior to the current application
1This is a long-standing matter and the parties have litigated in this Court since late‑2009. The Court file is currently in its 13th volume and shows no real signs of abating. The last orders in this matter were made on 5 August 2013. Those orders finalised the proceedings at that stage. That set of proceedings had commenced on 11 May 2011. The proceedings were between the mother and the father of the child, [J Hobson] born [in] 2007. [J] is now seven years old. Importantly, for today’s purposes, the maternal grandmother was not a party to those proceedings. The orders made on 5 August 2013 are attached to these reasons.
2The orders that, in my view, have particular relevance to the current application are:
[6] Subject to any rules of the contact centre, the Respondent [the mother] be permitted to be accompanied by extended family members at supervised visits.
[15] On a without admission basis, the maternal grandmother, [Mrs Kevins], be restrained by injunction and an injunction is hereby granted restraining her from disrobing, undressing or otherwise being naked in the presence of the said child.
[22] All outstanding proceedings shall otherwise be and are hereby dismissed.
Background and issues to be determined
3The maternal grandmother filed a Form 1 application on 14 November 2014. In that she seeks the same interim orders as final orders. They are:
1.The parenting orders made 5 August 2013, being order 4, 5, 6 and 7, be and are hereby discharged.
2.The applicant grandmother spend time with the child of the marriage, [J Hobson], born [in] 2007, on the first Sunday of each month from 10.00am to 6.00pm.
Special events
3.The applicant grandmother spend time with the child hereinafter, “[J]” on his birthday, being:
(a)three hours if the birthday falls on a day during the school week and school time;
(b)four hours if the birthday falls on a weekend.
4.At Easter:
(a)In 2015 on Easter Sunday from 9.00am to 5.00pm;
(b)On Easter Monday from 9.00am to 5.00pm in the year 2016;
and thereafter alternating in the above pattern.
6.[sic] The applicant grandmother:
(a)spend the 2014 Christmas Day with [J] from 9.00am to 2.00pm in the year 2014; and
(b)spend from 2.00pm to 6.00pm on Christmas Day in the year 2015 and therefore alternating in the above pattern.
School contact
9.[sic] The applicant grandmother have liberty to attend all special school functions in relation to [J] including but not limited to open days, school assemblies, special grandparents’ days and to receive newsletters and school invitations from the school at which the child is current enrolled and also a copy of the child’s school report each semester. The applicant grandmother have leave to serve a copy of these orders on the child’s school and any future school that he attends.
10.The applicant grandmother and her solicitor have leave of the Court to receive copies of the single expert witness three reports [sic] in relation to [J] in the former proceedings between the first and second respondent.
4During the course of the hearing before me, the grandmother’s counsel accepted that she cannot properly seek orders that discharge orders in relation to the time that the mother spends with [J]. That issue is up to the mother to deal with.
5Perhaps because of the long history of this matter, the fresh application by the maternal grandmother was hotly contested by the father. The father is the person who is responsible for [J] pursuant to the 2013 orders. One can understand his extreme reluctance to once again become embroiled in further proceedings over [J’s] arrangements and his welfare. The father was represented by Senior Counsel who made forceful (albeit elegant) submissions including detailed written submissions. The father’s position is that the grandmother’s application should be summarily dismissed. The chronology filed by the father on 9 January 2015 provides a useful summary of the history of the parties and this litigation. In particular, it details many events occurring prior to the final orders being made in 2013.
6The case summary prepared by Senior Counsel for the father noted that [at page 2]:
Although [Mrs Kevins] (the grandmother) was not a party to the litigation that resulted in the order of 5 August 2013 finalising the parenting arrangements for [J], her involvement in [J’s] life was considered in some detail by the Court and her future involvement in his life was the subject of a Judicial determination to the extent that provision was made for her to see [J] if she accompanied the mother during her supervised visits to [J].
7There are a number of issues arising from that paragraph:
(a)It is true that the maternal grandmother was not a party to the earlier proceedings and did not seek orders in her own right;
(b)The comment that “her involvement in [J’s] life was considered in some detail by the Court” requires some exploration. The Court made interim orders on 2 April 2013, which included a finalisation order. That allowed the mother and the father (being the parties to those proceedings) to relist the proceedings by 2 August 2013 otherwise various interim orders would become final by default and the proceedings would be dismissed. No such request to relist was made by either party in that time and therefore final orders were pronounced in Chambers on 5 August 2013 disposing of the proceedings.
(c)It is difficult to accept that the Court considered the grandmother’s role in [J’s] life “in some detail” if at all.
(d)The orders were directed to the mother’s time with [J]. The mother was permitted to be accompanied by family members at her supervised visits. The issue of whether the grandmother could see [J] at other times (and not in the mother’s presence) was not an issue before the Court at the time and not one therefore resolved by the Court.
8Part 10.3 of the Family Law Rules deals with applications for summary dismissal. Rule 10.12 provides that:
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
9The Court clearly has the power therefore to summarily dismiss an application if it falls within those circumstances.
10In this case, the father submits that the grandmother’s application has no reasonably prospect of success. He also says that further litigation is not in [J’s] best interests. To that end the father relies upon the principles in Rice & Asplund (1979) FLC 90-725. Senior Counsel for the father’s submissions provide in summary the following [at page 8]:
It is not in [J’s] interest for [Mrs Kevin’s] application to proceed further or at all, and in any event it discloses no significant or material change in circumstances sufficient to warrant revisiting the arrangements for [J’s] welfare and therefore has no reasonable (or realistic) prospect of success – see Rice & Asplund applied in McLean v Navi [2012] FMCAFam 1025 at [11].
11The decision in Rice & Asplund has evolved into a long-standing principle in which the Court must firstly consider whether the principle is to be considered on a preliminary basis or one after a detailed investigation. In addition, the Court must, in considering such a principle, still take into account the best interests of children and the various provisions such as the objects and principles of the Act in coming to its determination (see the views of Warnick J in SPS & PLS (2008) FLC 93-363 at [64] and [65]). As Warnick J said at [81] in SPS & PLS:
Thus, in my view, when the threshold question described in Rice & 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 the 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, about the interests of the child in not being subjected to further litigation, is more powerfully in the child’s welfare, than to allow the application to continue.
12It is clear that the Court must, if determining the matter at a preliminary stage, take the applicant’s case at its highest and proceed on the basis that the evidence produced by the applicant is correct. This view is also supported by the Full Court in Poisat & Poisat (2014) FLC 93-597
13I am satisfied in this case that the principle should be decided on a preliminary basis.
14The Rice and Asplund principle is that there must be a sufficient change in circumstances between the making of final orders in relation to children’s issues and the filing of fresh proceedings.
15In Miller & Harrington [2008] FamCAFC 150, the Full Court considered an appeal by the mother against orders made by Barry J to dismiss her fresh application on the basis of the rule in Rice & Asplund. At the original trial, Buckley J found, amongst other things, and this is set out at [106] of the Full Court decision, that:
· the mother was unable to facilitate a positive relationship between the children and the father;
· the mother was of the view that the children should choose for themselves whether they see their father or not and, for example, had told the children in the waiting room of the report writer that they did not have to see their father if they elected not to;
· each child had indicated to the report writer that they did not wish to see their father;
· the mother had “over exposed” the children to the dispute. The elder child made it clear she did not want any contact with the father;
· the children have been unduly and negatively influenced by the mother and she was unable to facilitate a relationship between the children and the father while they resided with her;
· if the children were placed with the father they would experience emotional and behavioural difficulties in the short term as they learned to adjust;
· if the children did not reside with the father, contact orders would be ineffectual; and
· in that eventuality, the relationship between the father and the children would further deteriorate.
16The Full Court accepted that taking the mother’s case at its highest, the asserted changes of circumstances appeared to be [at 110] that:
· the father and his family denigrated the mother to the children which had caused the elder child to leave the father’s care (a matter which Mr Page SC described before Barry J as “the most important” of the changes that had occurred since Buckley J’s judgment.);
· the mother had given birth to a child and a relationship had developed between the children and that child and separation from that child was “a source of some anxiety”;
· the children left the father’s residence “unaided by either of their parents” and had chosen to “go back into hiding”;
· that action was an indication of the stress the children were under;
· the children were now aged 14 and 11 (as opposed to 12 and nine before Buckley J).
17In those circumstances, the Full Court found that the matters said to be changes on behalf of the mother were in fact [at 116]:
manifestations of the fact that the central matters found by Buckley J ‑ including the antipathy of the children toward their father, the difficulties his Honour would exist for the children on a change in their residential care, the inability of the mother to promote or foster a relationship between the children and their father and the influence of the mother’s attitudes on the wishes of the children – continued to pertain.
18In those circumstances the appeal by the mother was dismissed.
19These principles were recently followed in the Full Court decision of Carriel & Lendrum (2015) FLC 93-640. The Full Court acknowledged that the trial Judge [at 25] recorded that the “rule” in Rice & Asplund was the subject of detailed consideration in Miller & Harrington (2008) FLC 93-383, SPS & PLS (2008) FLC 93‑363 and Cortes & Cabrera [2007] FMCAFam 293. The Full Court acknowledged that his Honour correctly accepted that the mother’s evidence should be taken at its highest and that the “threshold question” enunciated in Rice & Asplund is determined as a preliminary matter, and on the merits. His Honour also made it clear that he would assume that the evidence of the mother is accepted in order to assess whether there was a sufficient change of circumstances to justify embarking on a hearing.
20His Honour referred to the above-mentioned quote by Warnick J in SPS & PLS.
21Senior Counsel for the father takes the above argument further by submitting that [on page 2 of his summary]:
[Mrs Kevin’s] application has no reasonable prospect of success because it has already been determined that her time with [J] needs to be supervised and (even taken at its highest, and we are taking into account those aspects of it that are demonstrably untrue or misleading) it discloses no significant change in circumstances that would justify that order being revisited. There is therefore no serious issue to be tried.
22With respect to Senior Counsel, in my view, that statement does not accurately represent the situation. The mother’s application was determined by default orders that allowed other family members to accompany her during her time with J. That might be seen to be a way to ensure that the child might more readily enjoy his time with the mother. Whatever the intention behind that order, the meaning is clear. They relate to the mother’s time. The grandmother’s application has not previously been determined because it has not previously been filed. I accept that if the mother filed a fresh application seeking to change the earlier orders, she would have significant difficulties given the range of orders made. She would clearly have to show a significant change in circumstances to warrant reopening that litigation.
23The father makes further submissions that the grandmother’s application is mischievous, vexatious and an abuse of process. I am not satisfied that this is the case. I have not been taken to any previous application by the grandmother or to the extent of her previous involvement in the earlier proceedings.
24The father has also alleged breaches of the injunctions by the grandmother in relation to giving J a drink, but the grandmother is not restrained by that order – only the mother is. The only injunction against the grandmother is paragraph 15 which is set out above.
25The law on summary dismissal and the Rice & Asplund principle is fairly well settled. I must take the grandmother’s evidence at its highest in order to determine whether there is a reasonable prospect of success. The father clearly disputed some of the evidence of the grandmother and he may well succeed on these contested issues in due course. That, however, is not the test when considering the important step of dismissing the grandmother’s application outright and without allowing her to litigate the issue.
26I pause to consider the earlier judgment of her Honour Sutherland M on 18 November 2011. This judgment is described by Senior Counsel for the father as “very significant” as it made findings about the grandmother. Her Honour found that the grandmother had concealed the mother’s drug use from the Court, misled the staff at Sir Charles Gairdner Hospital, failed to seek medical attention for J and failed to fulfil her duties as a supervisor of the mother’s time. I note that this decision was an interim determination.
27Senior Counsel for the father makes the further submission [page 7, last paragraph] that:
The orders sought by [Mrs Kevins] are extravagant and go well beyond anything that a Court would be likely to make in respect of a person who is not a parent or does not have parental responsibility for a child. In that respect, and in the context of the history of Family Court proceedings in relation to [J], [Mrs Kevin’s] application has no reasonable prospect of success.
28I accept, of course, that the Court must take into account the best interests of children in making such a determination. That is part of the principle of Rice & Asplund as it has been interpreted by other decisions since then. I accept that there may be an impact on the father and on the child by having litigation in this Court once again in relation to J, but it is not litigation between the same parties as was the case in the proceedings that led to the orders in 2013. It is now almost two years since those orders were made and the application is a very precise and particular one by the maternal grandmother. I cannot accept that it is necessarily against J’s best interests to allow this application to proceed. At the end of the day, once this matter is properly litigated, it may well be that the grandmother does not succeed on some or all of her application, but the point is that she should be allowed to make that application and have it determined on its merits.
29I do not agree that the orders are extravagant or go beyond anything a Court would likely make. In any event, that is not the test. The test is whether there is no reasonable likelihood of success. That prospect must not be fanciful. The grandmother seeks a daytime period once per month together with a few hours on some special occasions. There is no indication that the time is sought to be unsupervised; that is inferred. In any event, in circumstances where the mother only spends time with J every second Saturday for up to two hours, the proposed orders by the grandmother are not outside the realms of a “real possibility”. In all the circumstances therefore I am not satisfied that the grandmother’s application should be summarily dismissed. I do not accept that it has “no reasonable likelihood of success”.
30I am therefore satisfied that the grandmother’s application should be permitted to continue. One of the orders sought by the father was that:
No other person other than the respondent, [Mr Hobson], be permitted to file any further application relating to [J Hobson] without the prior leave of the Court.
31In my view that is not an appropriate paragraph given I am allowing the grandmother’s application to proceed. The mother need not be directly involved in these proceedings as a party. She may wish to file affidavit material in support of one or other of the parties, but it should be clear from my reasons above that she would be in a very difficult position to seek to re‑litigate the issues given the orders of August 2013 and my comments above. I have made a distinction between her potential case and the grandmother’s case.
32The father also seeks various orders in relation to costs. I will enquire as to Senior Counsel as to whether that is still sought given these reasons. I will also make directions about the further conduct of this matter.
Orders
1.Paragraph 1 of the Form 1A response filed 9 January 2015 is dismissed.
I certify that the preceding [32] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Secretary
0
2
0