Murray and Kings

[2018] FamCA 405

FAMILY COURT OF AUSTRALIA

MURRAY & KINGS [2018] FamCA 405

FAMILY LAW – PRACTICE AND PROCEDURE – Service – Prohibition on service of proceedings – Rule in Rice & Asplund – Procedural fairness – According a right to be heard.

Marsden v Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms E Murray

RESPONDENT: Ms Kings

FILE NUMBER: CAC 544 of 2018

DATE DELIVERED: 1 June 2018

PLACE DELIVERED: Canberra

PLACE HEARD: In chambers

JUDGMENT OF: Gill J

HEARING DATE: 1 June 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The matter is listed for ex parte hearing on the question as to whether or not the applicant will be permitted to serve the proceedings upon the respondent or whether the applicant’s case will be dismissed without service on 14 August 2018 at 4pm.

2. The father has leave to attend by telephone.

3. The applicant is not permitted to serve the application or affidavit upon the respondent pending the next hearing date. 

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 Murray & Kings 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).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 544 of 2018

Ms E Murray

Applicant

And

Ms Kings

Respondent

REASONS FOR JUDGMENT

1. Ms E Murray, by initiating application and supporting affidavit filed 26 March 2018, seeks to recommence proceedings against Ms Kings in relation to their daughter Z (the child), born in 2006. 

2. Final orders were made on 6 February 2012 by Deputy Chief Justice Faulks on an undefended basis as Mr Murray, as he then was, withdrew all applications in relation to the child and they were dismissed. 

3. The orders made by the Deputy Chief Justice provided, amongst other matters, that the mother would have sole parental responsibility for the child, that the child would live with the mother, that there would be no orders for the child to spend time with the father, and orders for the personal protection of the child. 

4. The orders made by the Deputy Chief Justice included the following:

   16 Notwithstanding the respondent’s request to do so, the respondent be and is hereby restrained from serving any application he may file in relation to the child without it at first instance being considered in Chambers by Judge of this Court. 

   17.No application in this matter may be made otherwise then in the Canberra Registry of the Family Court without the leave of a Judge of the Family Court. 

   18 After consideration by Judge of this Court in Chambers of any application filed by Mr Murray, if that Judge considers it appropriate to do so and not to dismiss the application summarily such directions will be given for service upon the respondent as may be appropriate. 

5. Properly understood, these orders provide for the application by Ms E Murray to be filed within the Court, provided that is in the Canberra Registry of the Family Court of Australia and on the basis that it will be considered at first instance by a Judge in Chambers before a determination is made whether the proceedings will be served upon the mother and hence, whether the proceedings will continue beyond that stage. 

6. The orders provide for such consideration to be made in Chambers. 

7. The orders made by the Deputy Chief Justice were supported by reasons given for judgment.  Those reasons noted the absence of any relationship between the child and her father, noted proposed further litigation by the father at the time of the making of the final orders, being litigation proposed to take place following a proposed mediation process to take place in the future (if necessary).  The reasons also expressed his Honour’s concern regarding further litigation noting the litigation context was that there have been proceedings between the parties in Court for almost the whole of the child’s then 5 ½ years of life. 

8. His Honour reasoned and determined that prior to further involvement of the mother in litigation at the hands of an application made by the father, the father ought establish that the further proceedings are not precluded on the basis of the principles set out in the case of Rice & Asplund (1979) FLC 90-725.

9. The Rice & Asplund principles were thoroughly examined in Marsden v Winch [2009] FamCAFC 152 where it was said:

   In Miller & Harrington (2008) FLC 93-383 Warnick, Boland and Murray JJ distinguished the rule in Rice & Asplund from procedures such as “striking out” and “summary dismissal”. The Court (at [80]) did not accept that the only way which the rule in Rice & 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.  Importantly, the Court said:

   [81] Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a "preliminary" hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.

   [82] However, 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.

10. That is, the application of the principle, which was expressed to be an aspect of the best interests principle in governing whether the circumstances justify further litigation as in a child’s best interests, may require different procedural approaches dependent upon the circumstances.  This leaves open the possibility of dealing with a matter on a preliminary basis in Chambers.  In this case the applicant raises a number of factual issues in support of recommencing litigation.  They emphasise the applicant having undertaken “Sex Reassignment Surgery,” and a purported importance of advising the child of the change for the applicant.

11. In Marsden & Winch it was also emphasised that whatever the procedural approach, it is necessary to ensure that the parties are given procedural fairness.

12. While the orders provided for the initial consideration to occur in Chambers, there is a lack of immediate clarity as to why the matters raised may constitute matters going to the reopening of litigation.  In that context, in order to accord procedural fairness to the applicant it is appropriate to give the applicant the opportunity to articulate, in the light of the previous orders, why the matter should proceed to the point of service upon the respondent.

13. Orders will be made to permit the applicant to address this matter in advance of a permission to serve the process upon the respondent.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 1 June 2018.

Associate: 

Date:  1 June 2018