Murray and Kings (No 2)

[2018] FamCA 661

FAMILY COURT OF AUSTRALIA

MURRAY & KINGS (NO. 2) [2018] FamCA 661

FAMILY LAW – PRACTICE AND PROCEDURE – where applicant barred from service upon respondent until Rice & Asplund determination made – where application heard ex parte – continuation of application not in child’s best interests – application refused.  

Family Law Act 1975 (Cth) – section 60CC

Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms E Murray

RESPONDENT: Ms Kings

FILE NUMBER: CAC 544 of 2018

DATE DELIVERED: 15 August 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 15 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Murray, by telephone

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The Application filed by Ms E Murray on 25 March 2018 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 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. In this case final orders were made on 6 February 2012 by Deputy Chief Justice Faulks (as he then was).  They were made on an undefended basis as Ms Murray withdrew all applications and they were dismissed.  The orders that were then made provided, amongst other things, that the Mother would have sole parental responsibility for Z (the child), born in 2006, that the child was to live with her Mother, that there were to be no orders for time with Mr Murray (as he then was) and that there was an order made for the personal protection of the child. 

2. His Honour went on to make specific orders about future proceedings, those appeared at Orders 16 through to 18 of the judgment and are as follows: 

   (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 a 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 a 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. 

3. That is, there was some restraint placed by the Deputy Chief Justice on the commencement of further proceedings.  That restraint followed some indication having previously been given to the Deputy Chief Justice of an intention on the part of Mr Murray (as he then was) to potentially recommence proceedings. 

4. The orders made by the Deputy Chief Justice were supported in his Reasons for Judgment.  He noted that, at that stage, there was an absence of any relationship between the child and her Father.  He noted that the Father proposed further litigation in the matter, following what he proposed as a mediation process to take place in the future.  His Honour expressed a concern about the consequences of further litigation in the context that the litigation, at that stage, had taken place for almost the whole of the child’s then five and a half years of life.  He reasoned and determined that prior to the involvement of the Mother in further litigation at the hands of the Father, the Father ought to establish on an ex parte basis that the further proceedings should not be precluded on the basis of the principles contained in the case of Rice & Asplund (1979) FLC 90-725, which deals with the Court revisiting matters once orders have been made.

5. His Honour made orders excluding the Father from the child’s life, including orders for her personal protection, although he did make some orders which, for example, allowed the Father to send gifts.  In context, the orders that his Honour made at Orders 16 to 18 allowed the Father to file proceedings but not to serve those proceedings without leave.

6. The question then arises today as to what is the justification for further proceedings from the material that has been filed by Ms Murray.  Ms Murray seeks orders, being ex parte orders, firstly, relating to service of the documents, including substituted service.  She seeks the appointment of an Independent Children's Lawyer, the production of a Family Report, a psychological assessment of the Mother, a change in orders including the removal of the personal protection orders, and, despite there currently being in place orders that she is not to approach the child, she seeks orders for communication with the child and to spend time with the child.  She seeks a location order, she seeks an injunction preventing relocation on the part of the child and she seeks an injunction preventing overseas travel. 

7. Ms Murray relies on her affidavit filed 26 March 2018.  That affidavit contains eleven paragraphs and a number of annexures.  It sets out her inability to obtain school reports about the child, it says that she is unable to undertake mediation with the Mother, says that it is in the child’s best interest to have a relationship and also that she is capable of parenting. 

8. There is one particular change in circumstances that Ms Murray emphasises and that is her transition to female on 21 March 2013 and her lack of knowledge as to whether the child is or is not aware that she has transitioned to be female.

9. The principles set out in the case of Rice & Asplund arise on this application and their application to the current case is emphasised by the previous judgment made by Deputy Chief Justice Faulks in anticipation of a future application.  He made procedural orders to ensure that there was the opportunity to consider the principles in Rice & Asplund at the very first stage of the proceedings as a threshold issue. 

10. The case of Marsden & Winch [2009] FamCAFC 152 sets out the relevant principles and approves the previous enunciation of principles by Justice Warnick in the case of SPS & PLS (2008) FLC 93-363. Marsden & Winch says, in part, as follows, at [47]:

    We agree with the conclusion reached by Warnick J (at [81]) that:

    …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.

11. The Court went on to say:

    49.… It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children.  In addition, recent research demonstrates that conflict between parties is itself harmful to children.

    50.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:

    (1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.

    (2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

    (3)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. 

12. Those considerations at this stage, being a preliminary hearing which could have the effect of there being no impact of litigation as the process would not be served on the Mother, can have a profound impact on the burden of future proceedings by nipping them in the bud.  Past circumstances of this case were outlined by reference to the judgment of Deputy Chief Justice Faulks. 

13. As to the likelihood of a variation in orders, the matters outlined in Ms Murray's evidence do not support the idea that it is likely that the current orders would be varied. The current orders provide for what is practically no relationship, being orders that were justified in 2011 when the child was five years old, and having had the effect that she has had no relationship with her Father from 2011 to 2018.  That is, she has not had a relationship between the ages of five years old and 12 years old, that what is sought now is the pursuit of a relationship being instituted, with the change that is being relied upon being the Ms Murray’s transition of gender. 

14. On its own, as it is presented here, that fact does not mean or suggest that the institution of a relationship now, under the above circumstances which followed the findings made by Deputy Chief Justice Faulks at the previous instance, would be in the child’s best interests, or that it would even be of marginal benefit to the child for the change in orders as has been suggested. 

15. Even if I am wrong about that and there is a marginal benefit to the child of the commencement of a relationship with Ms Murray, in the context of the previous history of litigation across the first five years of the child’s life, the impact of litigation was so severe as to warrant orders to restrict litigation. A re-litigation of the question of the involvement of Ms Murray in the child’s life, and the impact of that re-litigation that may be supposed to fall upon the Mother, and thereby the child, means that it is more powerfully in the child’s interests to curtail the litigation than to allow the matter to continue to final hearing in support, or in pursuit, of what would be at best marginal benefits that may flow, but which at present seem unlikely to do so.

16. Applying the question of what is in the best interests of the child in the light of the decision in Rice & Asplund I find that it is in the child’s interests, in particular as a consideration of the s 60CC consideration of any other matter to avoid the impact or potential impact of litigation, as a matter outweighing what is it at best apparently a marginal benefit of meaningful relationship under the particular circumstances of this case. 

17. Accordingly, pursuant to the child’s best interests the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 August 2018.

Associate: 

Date:  30 August 2018.