Mahoney & Dieter
[2020] FamCAFC 88
•21 April 2020
FAMILY COURT OF AUSTRALIA
| MAHONEY & DIETER | [2020] FamCAFC 88 |
| FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from orders dismissing her parenting application – Where directions relating to the mother’s McKenzie friend were not procedurally unfair – Where the mother misinterpreted previous judgments – Where the test applied for summary dismissal did not prejudice the mother – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 102QB Family Law Rules (2004) (Cth) r 10.12 and r 10.12(d) |
| Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541; [1996] HCA 14 Mahoney & Dieter [2018] FamCA 532 Mahoney & Dieter [2019] FamCAFC 39 Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 MG v MG (2000) FLC 93-034; [2000] FamCA 893 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Smith v The Queen (1985) 159 CLR 532; [1985] HCA 62 |
| APPELLANT: | Ms Mahoney |
| RESPONDENT: | Mr Dieter |
| FILE NUMBER: | MLC | 11835 | of | 2017 |
| APPEAL NUMBER: | SOA | 50 | of | 2019 |
| DATE DELIVERED: | 21 April 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Tree JJ |
| HEARING DATE: | 19 February 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 September 2019 |
| LOWER COURT MNC: | [2019] FamCA 633 |
REPRESENTATION
| THE APPELLANT: | In person with a McKenzie friend |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | Melbourne Family Lawyers |
Orders
The Appeal SOA 50 of 2019 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahoney & Dieter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 50 of 2019
File Number: MLC 11835 of 2017
| Ms Mahoney |
Appellant
And
| Mr Dieter |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16 September 2019, the primary judge dismissed an application for final parenting orders between Ms Mahoney (“the mother”) and Mr Dieter (“the father”) concerning their presently eight year old daughter, X (“the child”).
From those orders, the mother now appeals. For the reasons which follow, the appeal must fail.
Background
The mother is aged 43 and is a New Zealand citizen. The father is aged 30 and is an Australian citizen. The mother commenced a relationship with the father in New Zealand in June or July of 2010, although at the time she was married to Mr Mahoney (“the husband”) to whom she remains married. The mother was then 34 years of age, and the father 20. In due course, the mother became pregnant with the child. After the child’s birth in 2011, the father had regular contact with the child until early 2012, when he returned to live in Australia.
The father’s evidence is that he was not aware the mother was married to the husband until after the child was born. Further, the mother kept her relationship with the father a secret from the husband, until some time after the child was born, having initially led the husband to believe the child was his. The husband remained committed to the child, and has at times been assessed as the child’s primary preferred attachment figure.
In early 2014, the father commenced parenting proceedings in New Zealand, seeking orders for contact with the child. This was opposed by the mother, who thereafter alleged that the father had been sexually and physically violent towards her, and that the child had been conceived as a result of rape.
Final parenting orders were made in the Family Court Division of the District Court of New Zealand on 7 April 2017 (“the New Zealand orders”). Underpinning those orders were findings that the mother’s allegations against the father were without foundation. The orders gave the father day-to-day care of the child, but afforded the mother ongoing supervised contact with her. The New Zealand orders also allowed the father to relocate with the child to Melbourne, and he did so.
The New Zealand orders were registered in the Family Court of Australia on or about 29 January 2018. However prior to then, on 14 November 2017, the mother filed an application in Australia seeking, on a final basis, that the child return to live with her in New Zealand. On 27 June 2018, that application was dismissed by Austin J, on the basis that there had been an insufficient change in circumstances since the New Zealand orders were made, to justify the re‑litigation of the parenting orders (Mahoney & Dieter [2018] FamCA 532). On 7 March 2019 the Full Court dismissed the mother’s appeal from those orders (Mahoney & Dieter [2019] FamCAFC 39 (“the Full Court judgment”)).
The mother then filed a further application for final parenting orders on 9 May 2019, which was dismissed by the primary judge, from which order this appeal arises.
The hearing before the primary judge
In his Response to Final Orders, the father sought that the mother’s application for final parenting orders be struck out or dismissed, and that there be a “Vexatious Proceedings Order” made against her (Father’s Response to Final Orders filed 6 June 2019, p.4). The basis for his seeking the first order was the same as he had advanced before Austin J, namely that there had been an insufficient change in circumstances since the New Zealand orders to warrant re-litigation.
On 29 July 2019, an Appeal Registrar directed that “the matter is to be listed for a Summary Dismissal Hearing (1/2-1 day)” and it was pursuant to that direction that the matter came before the primary judge on 14 August 2019, although both parties thought that the application for a “Vexatious Proceedings Order” would also be determined then.
At the outset of the hearing, the mother sought that the husband be her McKenzie friend, which the primary judge permitted. In due course, the mother gave evidence and was cross-examined by counsel for the father, and then the father gave evidence and was cross-examined by the mother.
The mother’s submissions were contained in a document running to some 170 paragraphs, which she did not orally expand upon. Counsel for the father made oral submissions, to which the mother made a brief oral reply, at the conclusion of which the primary judge reserved her decision.
The Appeal
By her Notice of Appeal filed 25 September 2019, the mother advanced seven grounds of appeal. However in her subsequent submissions filed 11 November 2019, although she made reference to those appeal grounds, on occasions the nature of the challenge which the mother made changed substantially. Finally, at the hearing of the appeal, the mother handed up and spoke to a “Summary of Appeal Arguments” which further focussed the scope of her challenge to four asserted fundamental errors (although the mother included a fifth in her oral submissions).
The expansion, inconsistency and variation between the several iterations of her challenge to the primary judge’s orders, suggests that the appropriate framework for assessing her complaints is by reference to the grounds of appeal themselves. Nonetheless, because one of the grounds asserts a lack of procedural fairness, it is appropriate to deal with it first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]). We shall then proceed to consider the balance of the grounds sequentially.
Ground 4
This ground of appeal states as follows:
4. The judicial officer erred in law by conducting the hearing in a procedurally unfair manner:
Particulars
· Despite the matter being set down as a summary dismissal hearing, the judicial officer conducted that matter as if it were a hybrid summary dismissal / threshold hearing.
o The two hearing types have vastly different burdens of proof, different onuses, and are conducted in a very different manner;
o The Applicant was not prepared to argue a threshold hearing;
o The Applicant was prejudiced by the judicial officer departing from the usual protocols of a summary dismissal hearing.
· The judicial officer wrongfully prevented the Applicant from fully utilising the services of her McKenzie friend.
(As per the original)
Turning to the first matter raised by this ground, as we shall discuss later, it is correct to say that there was a degree of unorthodoxy in the procedure the primary judge employed in hearing the matters before her. Particularly, there was something of a blurring of the procedures appropriate for summary dismissal, with those appropriate for the determination of a preliminary issue. Further, it is apparent from the transcript that, although the mother “wasn’t really expecting that [she] would be cross-examining the [father] today, but [she] had prepared some questions just in case, but… [she] would like to, because… he has never been cross-examined [in the Australian proceedings]” (Transcript 14 August 2019, p.44 lines 33–44).
Even a self-represented litigant is bound by the way that they conduct their case before the primary judge (Metwally v University of Wollongong (1985) 60 ALR 68 at 71). Having made no objection to the cross-examination of the father, and indeed having willingly seized the opportunity which it presented, and for which she was somewhat prepared, it cannot now be said by the mother that the procedure was somehow unfair.
Further, of itself and without more, the unorthodox procedure adopted by the primary judge for the hearing of the application, insofar as it blurred procedures between two different types of matters, did not result in procedural unfairness. We shall have more to say in relation to that blurring later in these reasons, but as shall be seen, there was no demonstrable lack of fairness to the mother in the process adopted by the primary judge.
As to the complaint made in relation to the mother’s McKenzie friend, a useful starting point is to recognise that the decision whether to permit such assistance “is very much a matter of practice and procedure, and within the discretion of the trial judge to decide” (Smith v The Queen (1985) 159 CLR 532 at 534). The Full Court in MG v MG (2000) FLC 93-034 also noted that:
25.…A litigant may seek assistance from any person providing that in so doing the orderly and expeditious conduct of proceedings is not interrupted. That assistance would usually mean being able to consult some person sitting in the body of the court from time to time. It would normally not mean allowing that adviser to take over the case and suggest every word that should be spoken.
At the commencement of the hearing before the primary judge, her Honour acceded to the mother’s application to be assisted at the hearing by the husband (a New Zealand legal practitioner) to “[h]and [the mother] documents and… things like that will help the court” (Transcript 14 August 2019, p.2 lines 37–41). However, later when he embarked upon giving other forms of assistance to the mother, the primary judge directed that the husband not “instruct” the mother (Transcript 14 August 2019, p.10 line 33), or “provide the information that will then come out of the mother’s mouth” (Transcript 14 August 2019, p.10 lines 38–39), “give... legal advice” (Transcript 14 August 2019, p.54 line 3), write “out the questions that need to be asked”, or act for the mother (Transcript 14 August 2019, p.57 lines 14–15). Rather, in conformity with what the mother had advised was to be the role of her McKenzie friend, her Honour restricted the husband to assisting the mother “in passing documents and the orderly conduct of the proceedings” (Transcript 14 August 2019, p.54 lines 7–8).
By this ground the mother contends that those directions by the primary judge comprised procedural unfairness, and that “[h]andicapping [the mother] in this way meant that [her] McKenzie friend could not advise [her] how to effectively respond to [counsel for the father] leading the [primary judge] astray” (Mother’s submissions filed 11 November 2019, paragraph 28).
However, leaving aside that the mother had not ever indicated that she wanted the husband to do anything other than assist her by handing her documents, no directions by the primary judge occurred in the context of counsel for the father allegedly “leading the [primary judge] astray”. Rather, her Honour’s directions were in the context of the primary judge asking the mother what material she relied upon in support of her case (Transcript 14 August 2019, p.10), during which the McKenzie friend apparently orally suggested to the mother that she “skip some of the questions” in her cross-examination of the father (Transcript 14 August 2019, p.54 lines 11–12), and his seeking to draft questions for cross‑examination of the father by the mother (Transcript 14 August 2019, p.57 lines 13–15).
The constraints imposed upon the husband’s assistance of the mother did not preclude her from doing anything, and certainly not from effectively responding to the allegedly erroneous submissions of counsel for the father. We are not otherwise satisfied that, in the context of this matter, the impugned directions of the primary judge relating to the McKenzie friend were procedurally unfair.
Ground 4 therefore fails.
Ground 1
This ground provides as follows:
1. The judicial officer erred in fact and law by basing her decision on reasoning which had already been rejected in a finding of fact by a higher court.
Particulars
· The judicial officer accepted the argument advanced by the Respondent’s counsel that the Applicant’s ‘fixed belief’ that she was the victim of sexual violence meant that she had not changed in any meaningful way.
· The Appeal Court had made the following findings of fact in its decision of 7 March 2019:
o That the existence of a ‘fixed belief’ was not a relevant matter, nor was it a matter that the primary judge had made a finding on (para 47 of the decision); and
o The submission that the mother needed to ‘recant’ her allegations against the father to demonstrate changed circumstances was not accepted in the trial reasons (para 44 of the decision).
(As per the original)
As clarified in the mother’s submissions, what this ground ultimately encompassed was the assertion that the primary judge wrongly thought that the mother’s “fixed belief” that the father had raped and seriously assaulted her was relevant, whereas it was contended that the Full Court had previously found that it was not. The last part of that proposition was said to be sourced at [47] of the Full Court judgment as follows:
By Ground 4 it is asserted that the primary judge erred by finding that a fixed belief alone, absent of an underlying mental illness, could constitute a safety risk to the child. As is apparent in both the mother’s written submissions and oral argument before us, while this may have been a feature of the controversy in the New Zealand proceedings, it was not a relevant matter before the primary judge, nor one that he made findings on.
However, the mother has misinterpreted that paragraph; all that their Honours were there saying was that, as argued before Austin J, the mother’s “fixed belief alone” was not a matter then raised for determination, not that it could not be relevant, or that to treat it as relevant would necessarily be erroneous. Given this misconception is fundamental to all the other arguments the mother advances under cover of Ground 1, we need not consider them further. This ground necessarily fails, as it is based on a false premise.
Ground 2
This ground provides as follows:
2. The judicial officer erred in law in her interpretation of the New Zealand Orders (“the Orders”) and in her assessment of their legal effect:
Particulars
· She wrongly concluded that only the numbered conditions in the Orders were relevant:
o There was a standard condition (which was being breached) that guardians must act jointly and consult when making guardianship decisions for a child;
o There was a standard condition (which was relevant to threshold issues) permitting any person affected by the Orders to apply to the Court to vary or discharge the Orders without the leave of the Court after two years.
· She wrongly concluded that if the order numbered 3 was frustrated (through lack of funding) then the Orders could continue with “other [unspecified] supervision arrangements being put in place”:
(As per the original) (Emphasis in original)
The starting point for the mother’s arguments in this respect, is her contention that all of the words in the New Zealand orders comprise enforceable obligations. Particularly the mother says that the following wording at page seven of the New Zealand orders constitutes part of the orders:
Effect of parenting order
The role of providing day-to-day care for a child continues until the child turns 16. While exercising the role of providing day-to-day care for a child, you have exclusive responsibility for the child’s day-to-day living arrangements, subject to any court order and the following conditions (if any).
If you are a guardian, unless your role or another guardian’s role is modified by a court order, you must act jointly (eg, consulting or whenever practicable with the aim of reaching agreement) when making guardianship decisions for a child.
Variation or discharge of this order
Any person effected by this order, or a person acting for a child who is the subject of this order, may apply to the court to vary or discharge this order. Leave (permission) of the court is required if the application is substantially similar to previous proceedings and the order was made less than two years ago.
…
(As per the original)
We are not persuaded that these words created enforceable obligations. They do no more than provide generic advice as to the operation of the orders, and New Zealand law generally.
Further, to the extent that the primary judge’s reasons deal with the interpretation of the New Zealand orders, it is only inferentially at [50] where, when dealing with the mother’s assertion that the husband could no longer afford to pay their private supervision costs, her Honour did not accept that the evidence permitted such a conclusion to be made. We are not satisfied that conclusion involved any interpretation of the New Zealand orders.
Otherwise, the matters complained of in the particulars under this ground of appeal relate to exchanges during the course of the hearing between the primary judge and the mother, but which do not find repetition or reflection in the judgment. Therefore they do not, whether expressly or inferentially, form any part of the decision or decision making underpinning the orders the subject of this appeal.
It therefore follows that this ground fails in its entirety.
Ground 3
This ground provides as follows:
3. The judicial officer erred in the exercise of her discretion by giving undue weight to irrelevant matters and insufficient weight to relevant matters in her Rice v Asplund analysis:
Particulars
· She gave considerable weight in several paragraphs to the existence of a ‘fixed belief’, despite this being an irrelevant factor;
· She gave no weight to (and did not mention) the bad behaviour of the Respondent. This is a factor which is relevant when attributing the blame for the breakdown in co-parenting:
o the Respondent had given affidavit evidence that he had been present in [City H] to witness certain events, and was then forced to admit under cross-examination that he had been in Melbourne at all material times and had fabricated his account of events;
o the Respondent omitted any reference in his pleadings and affidavit evidence to misleading Judge Austin (by providing a ‘false judgment’). This was a matter that was material to whether the proceedings were vexatious. The omission of this material was misleading;
o the Respondent did not contest the Applicant’s evidence that guardianship information had been with-held and that the Applicant had not been consulted about guardianship matters;
o while in the witness box the Respondent refused to contemplate any variation to current Skype arrangements.
· She gave undue negative weight to the Applicant’s criticisms of the Respondent’s bad behaviour:
…
(As per the original)
The rule in Rice and Asplund (1979) FLC 90-725 was definitively discussed by the Full Court in Marsden & Winch (2009) 42 Fam LR 1 as follows:
42. ... Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
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 circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material
…
44. As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
…
46. Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i) 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.
(ii) 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.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv) 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".
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) "Shorthand" statements of the rule may contribute to its misapplication.
(vii) 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.
47.We agree with those observations. …
48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
(Emphasis in original)
Appellate intervention in relation to the exercise of a judicial discretion is highly constrained, as discussed in House v The King (1936) 55 CLR 499 at 504–505, in which Dixon, Evatt and McTierman JJ said as follows:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Later, in Norbis v Norbis (1986) 161 CLR 513 at 540 Brennan J said:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
To the extent the mother asserts that the primary judge had regard to irrelevant matters, this comprises a reiteration of her mistaken construction of [47] of the Full Court judgment, discussed above.
This ground otherwise challenges the relative weight which should be given to individual factors in the exercise of the discretion. No error of the kind justifying appellate intervention is established by the mother, and this ground therefore fails.
Ground 5
This ground provides as follows:
5. The judicial officer erred in law and in the exercise of her discretion by improperly applying the test for summary dismissal set out in Lindon v Commonwealth of Australia (No 2).
(As per the original)
At [54] of the reasons, the primary judge said as follows:
The power to summarily dismiss an action must be rarely and sparingly used. The onus is on the father to establish the mother cannot succeed on the evidence adduced by the mother in support of her case together with any relevant admissions of the husband at the time of the hearing. He must establish that the mother lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
(Footnotes omitted)
At the conclusion of that paragraph is a footnote which refers to Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541.
It is unfortunate that the primary judge did not direct her attention to r 10.12 of the Family Law Rules (2004) (Cth) (“the Rules”), which deals with applications for summary dismissal. That rule provides as follows:
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.
As to the reference in the Rules to “no reasonable likelihood of success” in Ebner & Pappas (2014) FLC 93-619 at [59]–[62] the Full Court said:
59. The phrase “no reasonable likelihood of success” is, at least in relation to the test to be applied in the summary dismissal proceedings, of relatively recent origin.
60. In Bretton & Bondai [2013] FamCAFC 168 Finn and Strickland JJ at [59], and May J at [122], considered this is a conceptually different test to the “doomed to fail” test.
61.In Spencer v Commonwealth of Australia (2010) 241 CLR 118, referring to a Federal Court Rule in similar terms to Rule 10.12, Hayne, Crennan, Kiefel and Bell JJ said at [56]:
Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.
62. The applicable test was considered by another intermediate court of appeal, the Victorian Court of Appeal in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158. At that time the relevant legislative test in Victoria was “no real prospect of success”. There at [27] Warren CJ and Nettle JA said:
… whatever might be the practical effect of the new test, it is difficult to disagree with McMurdo J in Gray v Morris and McMurdo P in the Commissioner of Taxation v Salcedo that it should be applied by reference to its own language, without paraphrase or comparison with the previous rule, always bearing in mind the principle that the power to award summary judgment is only to be exercised with caution and, therefore, not unless it is clear that there is no real question to be tried.
(Footnotes omitted)
63. Their Honours continued at [35]:
Upon the present state of authority:
a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
By reference to that discussion we are reasonably comfortable in concluding that her Honour’s reference to “a reasonable cause of action” is analogous to the reference in r 10.12(d) to “no reasonable likelihood of success”. Even if that is not so, to the extent that the test as articulated by the primary judge may encompass other matters, it does so in a way that was prejudicial to the father, rather than the mother.
After articulating the test at [54], the primary judge thereafter applied it by considering whether the changes in circumstances contended for by the mother warranted re-litigation, and found that they did not. Ultimately her Honour concluded that “[t]he mother has no reasonable cause of action” (at [58]). As we have said above, to the extent that conclusion does not incant the wording of r 10.12(d), it was a deviation only favourable to the mother.
In her submissions, the mother advanced an argument not properly raised by the ground of appeal, to the effect that the primary judge “conducted a hybrid dismissal/threshold hearing” (Mother’s submissions filed 11 November 2019, paragraph 30). We have already dealt in passing with this contention when dealing with Ground 4.
It is true that, unusually, the primary judge permitted the father to rely upon material in the hearing, and also permitted cross-examination of both parties. But two things sufficiently mitigate that unorthodoxy. The first is that her Honour was also hearing the father’s application for a vexatious proceedings order under s 102QB of the Family Law Act 1975 (Cth). The second is that, to the extent that the primary judge adopted a procedure more akin to the trial of a preliminary issue, rather than a summary dismissal, no unfairness to the mother is thereby demonstrated. Moreover, it is plain that, at [54], when ultimately considering the summary dismissal application, her Honour was cognisant that it was only “… the evidence adduced by the mother in support of her case together with any relevant admissions of the husband” that regard could be had to.
Before leaving this ground, 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.
Ground 5 therefore fails.
Ground 6
This ground provides as follows:
6. The judicial officer erred in law and in the exercise of her discretion by improperly applying the threshold test in Rice v Asplund.
(As per the original)
As expanded upon in her submissions, it is apparent that, again, this ground is premised upon a fundamental mistake by the mother. Demonstrably, the primary judge did not impose an obligation on the mother to prove anything, but rather, in taking the mother’s case at its highest, and in assessing the reasonable prospects of its success, the primary judge was obliged to evaluate the viability of her claim. She did so. No error is thereby established. This ground fails.
Ground 7
This ground asserts as follows:
7. The judicial officer made several mistakes of fact:
Particulars
· She implies in paragraphs 37- 40 that Judge Austin (relying on the evidence of [Dr B]) believed the Applicant had invented a ‘false narrative’ and convinced herself that it was true:
o This is inconsistent with the rest of [Dr B’s] evidence;
o There was nothing in [Dr B’s] evidence to suggest that this was anything more than a remote (theoretical) possibility;
o There is nothing in Judge Austin’s decision to suggest that he had drawn or endorsed this conclusion.
· She claims in paragraph 44 that the Respondent had complied with and was not currently in breach of the Orders.
o The Respondent has admitted with-holding guardianship information and not consulting about medical matters.
· She asserted that the matters listed in paragraphs 7 – 31 of her decision were either ‘factual matters’ or ‘uncontested’.
o The veracity of the NZFC decisions and the merit of the opinions expressed by the experts in those hearings was bitterly contested in the Appeal hearing. The judicial officer is confusing accepting facts as true with accepting the base Rice v Asplund assumption that the NZFC decision is considered correct.
o The NZFC decisions are full of factual errors (eg the date of the Applicant’s marriage and the dates of birth of her children).
(As per the original)
This ground may be shortly dealt with. As ultimately articulated by the mother’s submissions, several “[s]pecific errors” were claimed (Mother’s submissions filed 11 November 2019, p.10), and errors in “[t]he background summary generally” were also highlighted (Mother’s submissions filed 11 November 2019, p.12). As but one example of the alleged specific errors, it is said that the primary judge wrongly stated that the mother was married in 1996, whereas it was actually in 1995. Plainly any such error – if it be an error – is immaterial.
As to errors in the “background summary” in the primary judge’s reasons, the first matter to observe is that these matters were indeed introduced by her Honour by way of general background. They were not material to her subsequent decision, save that they informed the substratum of historical facts or circumstances, which her Honour thereafter contrasted with the present facts and circumstances, to determine the degree of change. The fact that the mother is unhappy about the findings of fact which underpin the New Zealand orders is not to the point. The primary judge was entitled to accept those findings, and to compare them with the mother’s new material, in order to assess the magnitude of change of circumstances.
It therefore follows that this ground of appeal is not made out.
Outcome
No ground of appeal has been established. The appeal fails in its entirety and will be dismissed.
Costs
In the event that the appeal was unsuccessful, the father did not seek any order for costs, and therefore we will make no order in that regard.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Tree JJ) delivered on 21 April 2020.
Associate:
Date: 21 April 2020
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