O’Malley and O’Malley

[2008] FamCA 226

FAMILY COURT OF AUSTRALIA

O’MALLEY & O’MALLEY [2008] FamCA 226

FAMILY LAW  -  PRACTICE AND PROCEDURE  -  application to summarily dismiss application for fresh parenting orders filed soon after final parenting orders made by consent  -  adjourned.

Family Law Act 1975 (Cth), Div 12A Family Law Rules 2004, rule 10.12(c)

Rice v Asplund (1979) FLC 90-725

HUSBAND: MR O’MALLEY

WIFE: MRS O’MALLEY

FILE NUMBER: MLF 2831 of 2006

DATE DELIVERED: 23 January 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 23 January 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms. Colla

SOLICITOR FOR THE : Kennedy Wisewoulds

COUNSEL FOR THE WIFE: Ms L. Colla

SOLICITOR FOR THE WIFE: Taussig Cherrie & Associates

Orders

1. That the further hearing of this application be adjourned to 31 January, 2008 at 10:00 am. before the Honourable Justice Brown.

1. That by 1:00 pm. on 30 January, 2008 the husband file and serve :

   (a)a form 2A response to the application filed by the wife on 11 January, 2008;

   (b)an affidavit or affidavits in support of the form 2A response;

   (c)an affidavit setting out the facts which, it will be submitted, constitute the change or fresh circumstances which necessitate the re-litigation of parenting issues.

1. That the wife have leave to file an affidavit or affidavits in response to affidavits filed by the husband pursuant to this order and such affidavits be available for filing by 9:00 am. on the adjourned date. 

1. That the costs of this day be reserved.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym O’Malley & O’Malley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2831 of 2006

MR O’MALLEY

Husband

And

MRS O’MALLEY

Wife

REASONS FOR JUDGMENT  

1. This matter was listed today for the first day of a trial under the less adversarial procedures which are set out in Div.12A of the Family Law Act 1975. Proceedings were commenced by an application for final orders filed by the husband on 29 September 2006. In that application, he sought both final parenting and property orders. As I read the file, no application was ever made by the husband for interim parenting orders.

1. There have been contested interim applications in relation to financial matters. This is borne out by the two judgments delivered by Senior Registrar Fitzgibbon on 30 March, 2007 (in a case which had been argued before him on 7 March) and 19 March 2007, respectively.  Those proceedings went to issues of interim spousal maintenance and the husband's failure to comply with orders made, by consent, in the proceedings on 7 December. 

1. The parties married in November 1991 and finally separated in June 2006, having been separated under the one roof since March 2004.  They have one child, born in August 1996.  Importantly, final parenting orders were made, by consent, in the Magistrates' Court at Echuca on 1 June 2006.  Both parties were represented when those orders were made.  The orders provide for the child to live with the wife and to spend time with the husband on each alternate weekend, from the conclusion of school on Friday until 6 pm on Sunday; in each week from the conclusion of school on Wednesday until commencement of school on Thursday; and for half of all term and long summer holidays.

1. In October last year, the solicitors for the wife contacted the solicitors for the husband and advised of their view that the application for final parenting orders should fail on the principles commonly described as those set out in Rice v Asplund (1979) FLC 90-725. They invited the husband to withdraw the application for parenting orders, leaving the parties free to proceed with the application for financial orders. No reply was received to that letter.

1. It is the submission of counsel for the wife that, pursuant to the provisions of rule 10.12(c) of the Family Law Rules 2004 the husband's application for parenting orders should be dismissed on the grounds that it is frivolous, vexatious and/or an abuse of process. It was filed less than four months after final parenting orders were made on 1 June, 2006. It seeks the complete reversal of those parenting orders; it is not an application seeking some minor variation or tweaking.

1. In discussion with counsel this morning, I inquired whether counsel were ready to argue the summary dismissal point this afternoon.  I understood both to say that they were.  I had done my best, I thought, to make it clear that if the father wanted to file other material, I would need to know of that before I determined whether I would hear the application.  At that stage nothing was said by counsel for the husband.  It may be that counsel and her instructor misunderstood what I said. 

1. When the case resumed, I heard submissions from counsel for the wife, who had also prepared an outline of those submissions.  The submissions are cogent and well argued.  When counsel for the wife commenced her submissions in reply, she sought to adduce evidence (albeit from the bar table) by telling me of her instructions and of her client's motives for making the application.  When it was made clear that the court could not rely on those assertions, she sought an adjournment to file additional material.

1. I have considerable sympathy for the wife's position, particularly having regard to what was said this morning.  Nevertheless, having regard to the need for procedural fairness, I am not satisfied I can proceed with the balance of the hearing today.  I am not satisfied that I can simply infer from the fact that no interim application was filed by the husband that there are no new facts or circumstances which would warrant reopening the children’s issues. 

1. Counsel for the wife is right in submissions that the legislative changes which came into operation on 1 July, 2006 do not provide such a change in circumstances.  Nevertheless, the court is obliged to keep the best interests of children in mind, and in those circumstances I do not think I have any option but to accede to the adjournment application.  I propose to treat the matter as part-heard and will list it to continue next Thursday.  I will reserve today’s costs and hear any application for costs of today on Thursday. 

I certify that the preceding
9 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.