Preiss and Preiss (No. 3)
[2018] FamCA 945
•20 November 2018
FAMILY COURT OF AUSTRALIA
| PREISS & PREISS (NO. 3) | [2018] FamCA 945 |
| FAMILY LAW – CHILDREN – where final orders had seen the parties’ child live with the wife nine days and the husband five days – where the wife had an incident with the child resulting in her own hospitalisation, the removal of the child and the Police laying charges against her – interim application for a resumption of time and orders made for supervision. FAMILY LAW – PROPERY – s 79A – where the husband now seeks to set aside or vary the property orders but fails to provide evidence or submissions as ordered – where the wife seeks summary dismissal – where, absent material, the husband’s application has no reasonable likelihood of success. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| British American Tobacco Australia Ltd v The State of Western Australia[2003] HCA 47; (2003) 217 CLR 30 [103] Dey v Victorian Railways Commissioners[1949] HCA 1; (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69; (1964) 112 CLR 125, 129 Goode & Goode [2006] FamCA 1346 Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; 70 ALJR 541 Masters & Cheyne [2016] FamCAFC 255 Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 Preiss & Preiss [2017] FamCA 720 Preiss & Preiss (No. 2) [2018] FamCA 805 Simpson & Hamlin [1984] FamCA 62; (1984) FLC 91-576 Spencer v The Commonwealth[2010] HCA 28; (2010) 241 CLR 118 Webster v Lampard[1993] HCA 57; (1993) 177 CLR 598 |
| APPLICANT: | Mr Preiss |
| RESPONDENT: | Ms Preiss |
| FILE NUMBER: | MLC | 10148 | of | 2014 |
| DATE DELIVERED: | 20 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 1 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Goddard |
| SOLICITOR FOR THE APPLICANT: | Go to Court Law |
| COUNSEL FOR THE RESPONDENT: | Mr Salamanca |
| SOLICITOR FOR THE RESPONDENT: | Gadens Lawyers |
Orders
THAT UNTIL FURTHER ORDER, the time and communication between B (born … 2009) (“the child”) and his mother Ms Preiss be as follows:
(a) Each Wednesday by telephone with the mother initiating the communication to the father’s mobile telephone; and
(b) At such times and on such occasions under supervision as the contact service at which both parties have registered can accommodate.
For the purposes of paragraph 1 (b), the contact service is not to commence and supervision time until after the first consultation by psychologist Dr N and unless she objects (and the parties thereafter act upon her views according to the terms of paragraph 4) the time shall proceed.
Also for the purposes of paragraph 1 (b) and the avoidance of doubt, the contact service is to be advised by the solicitors for the husband and the wife that:
(a) The wife has pending criminal charges against her for assault against the child at a time when she was said to have suffered a mental health issue resulting in her being hospitalised for some months;
(b) the child is said to be fearful of face-to-face contact with his mother although the source of that report is unknown;
(c) the child has been having telephone communication with his mother since early in 2018; and
(d) The Court has ordered the preparation of an expert psychological report relating to the impact of any orders upon the child but has not had the benefit yet of that report.
That all parties have liberty to apply on short notice to seek to delay and/or suspend paragraph 1 (b) on appropriate evidence.
That all extant applications for final parenting orders are otherwise adjourned to a date to be fixed for final hearing before a judge.
That the parties, at their joint and equal expense, attend upon, AND AT THE DIRECTION OF, psychologist Dr N for the purposes of the preparation of a report to them and to the Independent Children’s Lawyer appointed by the Court in relation to:
(a) The matters raised in the reasons for judgment published with these orders;
(b) The issue of whether or not the child has a fear of face to face contact with his mother and if so, whether the pursuit of that relationship creates an unacceptable risk to him of psychological harm;
(c) The impact on the child of the absence of his mother from his life; and
(d) What needs to be undertaken to ensure that there is some form of future relationship between the mother and the child.
The solicitors for the parties shall provide to Dr N a copy of the reasons for judgment this day.
That pursuant to s. 65DA(2) and s. 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this order.
That paragraphs 2, 4, 5, 7, 9, 12, 13, 15, 16, 17 and 18 of the Initiating Application filed on 1 September 2018 are summarily dismissed.
That paragraphs 6, 8 and 14 of the said Initiating Application are consolidated with paragraph (5) of these Orders.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 4:00 pm on 30 November 2018 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 4:00 pm on 7 December 2018 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
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 Preiss & Preiss (No. 3) 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 MELBOURNE |
FILE NUMBER: MLC 10148 of 2014
| Mr Preiss |
Applicant
And
| Ms Preiss |
Respondent
REASONS FOR JUDGMENT
These proceedings are between Mr Preiss (“the husband”) and Ms Preiss (the wife”). They concern two issues.
First, there is a parenting dispute as to whether or not the wife’s present supervised telephone contact with nine-year-old B (“the child”) should advance to supervised face-to-face contact at a contact service.
Secondly, there is a financial dispute with a number of aspects. There have already been final property orders made by the Court and the obligations under those orders have not been completed. Thus, there is an enforcement application by the wife.
As a result of what happened in an incident between the wife and the child in late 2017 and which is currently the subject of criminal proceedings against her, in addition to parenting proceedings, the husband has now brought an application under s 79A of the Family Law Act 1975 (Cth) (“the Act”) to vary or set aside the final property orders. Because of the way the husband has presented his case, the wife has now brought a summary dismissal application.
As will be seen from the reasons below, I gave the husband an opportunity to file written submissions in response to the wife’s application for summary dismissal of his application under s 79A of the Act. Those submissions were to be filed by 4:00 pm on Friday 16 November 2018[1]; they were not. On Monday 19 November 2018, all parties were advised that judgment in respect of the summary dismissal application and the interim parenting application would be handed down at 2:15 pm on Tuesday 20 November 2018. At 8:47 pm on Monday 19 November 2018, the Court received an email from the husband’s solicitors which reads:
We confirm that our client is no longer pursuing the s79A aspect of his matter.
We note His Honour will hand down reasons for judgment in the above matter at 2:15pm tomorrow, Tuesday 20 November 2018.
That is an inappropriate way to deal with the issue and for clarity, I consider I am obliged to deliver reasons and make orders consistent with the way the case was argued. Accordingly, the reasons have been drawn on the basis of the silence of the husband and his legal practitioners.
[1] Per Order [3] of the Orders made on 2 November 2018
An adjournment?
Over the top of both of those issues was an application by the husband for an adjournment. At the hearing on 2 November 2018, counsel for the husband appeared for the first time (he having earlier been without legal representation) and sought an adjournment of both of the issues identified above but particularly the second. The adjournment was opposed by counsel for the wife. After hearing from both counsel, I rejected the application and although I gave some brief reasons at the time, I now set out my formal reasons.
The husband had been represented by lawyers at the final hearing in December 2016 after which, the final orders were made in January 2017. When the present litigation began on 31 July 2018, it was the wife who applied for enforcement of the property orders notwithstanding she also had an unresolved parenting dispute. She did not articulate that at the time.
The first return date of the wife’s application was 5 September 2018, on which date, the husband appeared unrepresented and without having filed documents. He had been served with the wife’s application on 7 August 2018. He came to Court with a prepared statement which he insisted the Court read and which could only be described as a stream of consciousness. I ruled at the time, over opposition from the wife, the husband had to be given an opportunity to file an application, although it was difficult to discern not only from his oral presentation but also his statement, just exactly what application he intended. I then adjourned the wife’s application and ordered the husband to pay her costs. I warned the husband that he should get legal advice. The husband has paid those costs.
On 21 September 2018, the case return to Court and again the husband was unrepresented. This time, he had filed an application but much of it could also be seen as a stream of consciousness rather than a precise set of orders to assist the court. It became clear that he was seeking to set aside the property orders and also wanted new parenting orders. After discussion again, the husband applied for an adjournment when it became apparent that his application was largely unintelligible. I ultimately granted his application (again with an order for costs) but I then said:
[13][Mr Preiss] now makes an application for an adjournment acknowledging that his case is not in a condition where the Court can do much about it. [Counsel] for the wife, [Ms Preiss], says that she is ready to proceed and has come here again and faces the same problem that she faced on the last occasion. The Court can only do so much with people who will not provide it with information to enable a determination to be made according to law. [Mr Preiss] has not provided the assistance that the Court is entitled to expect even from a litigant who does not have legal representation in circumstances where the focus in on the best interests of the child. [Mr Preiss] now says that he is going to get some legal advice and I am very comforted by that fact because it must mean that the lawyers will start to focus on what issues are, in reality, in dispute here[2].
[2] Published as Preiss & Preiss (No. 2) [2018] FamCA 805
Although on the further return date, 2 November 2018, the husband had provided no evidence, I accepted his counsel’s statements that he had tried to get a lawyer (and he saw and paid for a few) and he was not successful in engaging them because they all could not do what he wanted done in the allotted time. His counsel’s instructor was engaged on or about 19 or 20 October 2018 and despite the days thereafter, no affidavit or application was forthcoming. No explanation was given for that.
It was submitted for the husband that the Court should not make the parenting orders sought by either party as the evidence was scant. Be that as it may, I rejected that as a basis for an adjournment because either, or both parties, could still make submissions, and if they did not have evidence to support those submissions, the respective applications would fail. There were other reasons why there was little urgency in respect of the parenting application and I return those below.
The application for the adjournment of the property proceeding was more difficult. The husband’s counsel acknowledged that the husband had had indulgences before, even allowing for the difficulties of obtaining a lawyer. He had originally been served in August 2018. More importantly, the financial entitlements of the wife were more than 18 months old and the husband had retained control of the assets in the meantime.
I rejected the husband’s application for the adjournment on the basis that his counsel had failed to convince me that there was new evidentiary facts that would assist to identify the basis behind the application brought under s 79A of the Act which would found a rejection by the Court of the wife’s summary dismissal application. In reality, what was needed from the husband were submissions as to how the facts fitted the law. His counsel conceded that the dilemma could be resolved by written submissions. An order was then made for that to occur and accordingly, I found there was no longer any basis to justify an adjournment. Having given the husband an opportunity to file written submissions, he failed then to do so.
The parenting issue
Relevantly, in January 2017, I ordered that the child live with the wife and spend five nights out of 14 with the husband. Other parenting orders were also made. The husband’s case, which was rejected in that trial, had been that he wanted to have the wife live with him in Israel and that she be the predominant carer of the child in that country. In the context of what was to unfold in December 2017, my reasons for judgment said (noting that Dr N was the single expert witness psychologist in the trial)[3]:
[21]Despite the focus of the wife in responding to the husband’s affidavit about mental health issues, she was sufficiently comfortable that he was capable of caring for the child by virtue of her proposal of the nine:five days arrangement. When asked whether the court should be concerned because both the husband and wife acknowledged the husband’s mental health issues yet still agreed on a sharing of the child, [Dr N] said that as a parent, the husband was “good enough”.
…
[30] As the husband’s mental health status was not disputed, [Dr N] thought he would improve if he was in Israel. Whilst to some extent that makes logical sense, the uncertainty remains as to what level it would improve. If the husband remained in Australia, [Dr N] thought it difficult to say that his mental health would be “poorer” but that was because in between 2015 and 2016 when she saw him, she detected an improvement. In this case, the husband has attended both a psychologist and a psychiatrist but I had no evidence as to what was happening professionally save that I was informed that the husband was taking medication. There was discussion about whether he suffered from depression but the evidence was lacking to enable me to make a finding that a move to Israel would remove all barriers to the husband’s capacity to work fulltime and to be a better parent if that is necessary here at all. So too, I have no evidence about future mental health issues if he remains in Australia and thus, generalisations about improvement or decline are rhetorical.
[3] Published as Preiss & Preiss [2017] FamCA 720
Notwithstanding the undoubted focus of concern about the husband’s mental health at that time, it was indeed the wife’s health that turned this case upside down. Her own description in her affidavit[4] in the present proceedings was as follows:
[22]In the final days of December 2017, I had what I now understand to be an episode of psychosis. I am unable to comment on the incident further due to ongoing criminal law matters.
[23]I was hospitalised following the incident, and remained in the C Hospital from 29 December 2017 to 14 March 2018 at which point I returned home to [Suburb Y].
[24]From 29 December 2017, the child reverted from my primary care to reside on a full-time basis with [the husband]. The parenting orders made in our Final Orders have been suspended by virtue of an Intervention Order naming the child as the Affected Family Member. I miss the child terribly, however am engaging with Child Protection at all times, and am now having weekly telephone calls with the child which are supervised by an individual from Child Protection.
[4] Affidavit of the wife affirmed on 16 July 2018, and filed on 31 July 2018
None of the wife’s evidence nor any of the evidence of the husband explained what happened, and it was left to the Court to pursue details through the Department of Health and Human Services (“the Department”).
On 19 September 2018, the Husband filed a notice of child abuse, family violence or risk of family violence.
In response to that notice, on 3 October 2018, the Department wrote (to the Federal Circuit Court of Australia) and identified the basis of their report as a response under s 67Z of the Act. The Department wrote that in December 2017, a report had been made to them about the wife dragging the child into her apartment and the police attending. At that time she told the Police that when the husband had dropped off the child to her, there was a person in the back seat of the car pointing a gun at her. Whilst there were concerns about her mental health at that time, the Department took the view that there was no risk to the child. On the same day, further allegations were made by the wife about someone trying to kill her and the child. The police and the Crisis Assessment and Treatment team spoke with her and there was no indication of a mental health issue. However, a further report was then received that the wife had tried to physically hurt the child. It was said that the child had significant injuries and was taken to the D Hospital where he told them what had happened to him. In the meantime, the wife went to the C Hospital where she apparently admitted herself and underwent a mental health assessment. The wife remained in the C Hospital but the B Hospital discharged the child into the care of his father.
At the hearing on 2 November 2018, neither party denied the accuracy of the Department’s report.
The strangulation issue has given rise to police charges and the wife has been committed to stand trial in the County Court of Victoria apparently as late as September 2019. In the meantime, the child has been speaking to her on the telephone under the “supervision” of a Mr E.
Mr E’s position is confusing and very unclear to the Court. He was thought by the wife, who met him at the C Hospital, to be from “child protection”. Mr E attended Court with the husband and was treated as a “McKenzie friend” when the husband was unrepresented. Counsel for the husband on 2 November 2018 described him as a “psychologist”. Whatever, and whoever, Mr E is, no evidence has been provided to the Court about what role he fulfils, how he is paid, and more importantly, whether the child has any problems about contact with his mother. The husband is also silent on the same subject. That all leads to a question of why the contact between the wife and the child should not be advanced albeit at a contact centre under supervision.
On 21 September 2018 I made an order that the solicitors for the wife send to the Department of Health and Human Services and Victoria Police copies of the wife’s proposed orders relating to the child with a request that they provide an indication whether they would be concerned about those orders and whether the relevant bodies intended to intervene in the proceedings.
I had raised concerns in September about how the Police might view matters on the basis that presumably, the child is a witness in the criminal proceedings against the wife. The wife has said that she has a copy of the evidence that the police will present. I was concerned that the police might be troubled about witness tampering even if the child was having supervised time with his mother. I have no idea whether Mr E understands any of those concepts. The response of the police was that they would give evidence if they were subpoenaed to do so. That was unhelpful, but I have inferred that they have no concerns.
The Department was more proactive because, based on an unidentified concern for the child’s mental health and wellbeing, they recommended that telephone contact continue, but that there was no assessed need for that to be supervised unless the child sought that support. It is to be remembered that the child is nine years of age. The Department was of the view that the child should be linked in with a clinical child psychologist to assist him to “process the trauma” that he had been exposed to. Again, I have no understanding of what that means in the context of the child being traumatised, not so much by exposure to what occurred, but what physically happened to him. The Department’s view was that supervised contact at a contact centre could take place as soon as a treating psychologist had assessed that that was appropriate. Such an order would be an abdication of judicial responsibility.
It is also confusing as to whether Mr E is fulfilling not only the role of supervisor (which seems to be unnecessary according to the Department unless the child wants it) and also some form of counselling.
In the Department’s report dated 3 October 2018, a note was made that on that same day, the Department received a report about the prospect of the child having physical contact with his mother “given the severity of harm she had recently caused him, via attempted strangulation”. The person who made the anonymous report noted that the child was fearful of any face-to-face contact. That is as high as the concern gets.
The Department went on to say that it had not investigated matters and made no mention of Mr E, even though they knew that telephone contact was taking place. They clearly knew of the notification on the day they wrote the report. Nothing was said by counsel for the husband about that anonymous report. If Mr E made it, it is curious that there is no evidence from him. The whole situation is very unsatisfactory. There is no evidence of the impact on the child in relation to the involvement of, or the absence of, his mother. It is not at all clear why he would be fearful of face-to-face contact in circumstances where no one has indicated a problem with the telephone contact.
The parties’ proposals
Counsel for the wife submitted that the proposed orders were those set out in the response to the initiating application filed on 20 September 2018. They began by proposing that the wife be permitted to communicate with the child by telephone at times as he requested, and otherwise as between the parties and on a specific day each week. She then proposed that the child spend time with her at a supervised contact centre for two hours each Saturday and otherwise as agreed. She proposed that she meet the costs.
The wife also proposed that the parties attend upon Dr N, a psychologist, for the purposes of obtaining a family report as soon as possible and that that be a cost met by each party. The Court was told an appointment with Dr N had been booked for 14 December 2018.
The husband’s position was that the Court should make orders that the child live with his father, and communicate with his mother by telephone as agreed between the parties or failing agreement on each Wednesday night. The order proposed that the call be made by the wife to the telephone number of Mr E and be supervised by Mr E or some other person as agreed. He then proposed that each parent be restrained from discussing legal proceedings and that the supervisor be permitted to terminate the call in the event that any issue was discussed that Mr E deemed inappropriate. The husband then proposed that the child “continue to attend” Mr E for counselling.
The husband urged the appointment of an independent children’s lawyer and that the parties attend upon a family consultant to take part in the “child responsive program”.
Finally, the husband proposed that the wife provide the names of psychiatrists or psychologists that she had attended since 18 January 2017. In respect of that order, having regard to the sensitive nature of the information that may have been discussed, the wife objected to that as there is a pending criminal trial. I agree with that view.
In respect of the wife’s proposals, the evidence is indeed scant as described by Counsel for the husband. It is perplexing that neither party has addressed the issue of how the child is progressing, and why the relationship is not advancing. There can be no concern about physical protection for the child because it was not suggested at any time that it would be unsupervised. The concern must relate to psychological problems and if Mr E is a psychologist and has been intricately involved in the child’s life, both as a supervisor and as a counsellor since early 2018, why is there no evidence? It is curious that the Department, whose protective employees have not investigated matters, seem to suggest that telephone contact did not need to be supervised unless the child wanted it that way. The vague report as to why the child would be fearful of face-to-face contact even under supervision, are also perplexing when that issue has not been investigated by the Department.
The wife proposed that the Dr N be engaged, presumably for the purposes of assisting the parties, and the Court, on the question of the psychological impact on the child of time in whatever form, with his mother. The husband did not address that issue but rather said that a family consultant should be involved for the purposes of satisfying s 11F of the Act. None of that could provide an in-depth analysis of the psychological impact on the child and I remain unsure as to whether or not the Court has the resources to provide that sort of expertise.
Dr N is well known to the Court and it seems logical in the circumstances that she should be the appointed person to undertake this task. The Court was informed that any contact centre supervision could not commence for at least four weeks, noting that the husband only registered immediately prior to this hearing being undertaken. Dr N’s role will almost certainly commence before the contact centre can accommodate the parties.
In respect of the proposals of the husband, the intervention order has effectively taken control of the situation so there is no necessity for the Court to make orders in the meantime.
The husband’s specific proposal that the wife’s time with the child on the telephone be supervised by Mr E is not an appropriate order to make when there is no evidence from Mr E at all. It is inappropriate for Court to make a supervision order without some understanding of who the person is, and what understanding they have of the importance of the role and the obligations they have to the Court let alone to the child. If Mr E is to be involved, he must give an undertaking to the Court as to that role.
The husband also sought the order that each party be restrained from discussing legal proceedings with the child. There is no evidence that the wife has done that. When I raised the subject of why the husband was agreeing to that course of action, his counsel’s response was that he had not done anything either and therefore this mutuality does not make much sense. It is not an order that is appropriate in the circumstances.
This is a case however where the child’s interests should be represented by an independent children’s lawyer who, having regard to the reticence of the husband to provide any information about Mr E, can pursue not only that, but also have discussions with Dr N about what is the appropriate level of supervision and/or contact.
In Goode & Goode [2006] FamCA 1346, Full Court set out what should happen in an interim parenting application. It is not controversial that the scope of the enquiry is significantly curtailed. However, significantly curtailed does not mean no evidence. As the Full Court said, the Court should not be drawn into issues of fact where no findings can be made and as such, the Court should look at the less contentious matters. In this case, none of that has been addressed at all.
The Full Court’s view in Goode was that the interim hearing should identify the competing proposals and issues in dispute and then set out the agreed or uncontested relevant facts. Matters set out in s 60CC of the Act and the other parts of the legislative pathway need to be considered as well. However in this case, all that was done in 2016 and 2017 and it is unnecessary for me to canvass them again. Much of what the Court made findings about in 2017 seems to have been changed as a result of whatever happened in December 2017.
In the circumstances, the best evidence I suspect is going to come from Dr N.
To be abundantly clear, the primary considerations set out in s 60CC of the Act refer to the benefit of the child having a meaningful relationship with both parents but at the same time, there is a need to protect him from both the physical and psychological harm from being subjected to abuse. To make abundantly clear, s 60CC(2A) of the Act provides that if there is a conflict between those two principles, greater weight must be given the need to protect the child from harm. I intend to apply that here with the requirement of supervision. The floating of the idea by the Department that the child is fearful of face-to-face contact is not something about which the Court should be concerned unless there is an evidentiary foundation for it. At the moment there is none.
In the circumstances, the parenting orders set out at the commencement of these reasons should be made.
The financial issues
I turn then to the financial issues. The relief that the husband seeks is under s79A of the Act. When pressed in the discussions on 2 November 2018, his counsel said that it was based on three grounds in s 79A of the Act as follows:
a)Section 79A(1) (d) of the Act, namely in the circumstances that had arisen since the January 2017 orders (specifically since the December 2017 events involving the wife and the child) being circumstances of an exceptional nature relating to the care, welfare and development of the child, either the husband or the child will suffer hardship if the orders are not varied or set aside;
b)Section 79A(1)(b) of the Act, namely that in the circumstances that have arisen since the order, it was impracticable for the order to be carried out;
c)Section 79A(1)(c) of the Act, the wife had defaulted in carrying out an obligation in the order and in the circumstances of the default, it was just and equitable to vary or set aside the order.
Each of these issues needs contemplation in the light of the submissions now put before the Court. Before looking at those, the wife’s position was that the husband’s application should be summarily dismissed or, if the Court rejected that approach, then there should be an order for security for costs.
The law in relation to summary dismissal is not controversial. Rule 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that after a response has been filed, a party may apply for “summary orders” upon a claim that the substantive application is frivolous, vexatious or an abuse of process or where there is no reasonable likelihood of success.
Whilst the rules set out that detail, authority has been the best guide. In Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; 70 ALJR 541, Kirby J made observations about the approach to such a question saying that he preferred to deal with the attempt by the litigant to obtain relief from the Court by examining whether or not it was doomed to fail.
“Doomed to fail” might be seen to be different to “no reasonable likelihood of success” but the underlying principle is the same. That is, Kirby J was contemplating giving the litigant an opportunity to amend his pleading because if that occurred, there might be a plausible cause of action. His Honour questioned whether reframing of the statement of claim could save it without completely altering its character and presenting a different case. I have given the husband that opportunity here and he did not take it to rectify his claim and as I earlier mentioned, his counsel on 2 November drifted into, and outlined, two other grounds that had not been mentioned before then.
Absent an amendment which has not been forthcoming, the husband’s claim relies upon s 79A(1)(d) of the Act. I shall deal with the other two grounds in a moment, but I agree with the submission of counsel for the wife that they have no merit.
The wife must demonstrate on the husband’s affidavit before the Court that a trial should not occur specifically bearing in mind that the trial took place in late 2016 but here because it is apparent on the face of the affidavit materials and the submissions that come with it, there is no reasonable likelihood of success.
In addition to the caution expressed by Kirby J which was directed to giving the litigant an opportunity plead for some relief that would attract the Court’s attention, it is clear that the relevant authorities require the Court to tread carefully because of the access to justice issue. Apart from anything else, I am very conscious that the husband, as a litigant in person, and despite my urging for him to get legal advice, did not do so until October. Thus, the Court has to be particularly careful to examine his affidavit because of his own ineptitude at portraying what he could have sought (see Neil v Nott [1994] HCA 23; (1994) 121 ALR 148). Because of that problem, I discussed with the husband’s counsel the fact that it was not so much the facts, although they were important, but the legal argument about how the Court could or should exercise its powers under s 79A of the Act.
As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69; (1964) 112 CLR 125, 129, the power to order the summary dismissal of a claim must be exercised with “exceptional caution” and “should never be exercised unless it is clear that there is no real question to be tried”.
In Dey v Victorian Railways Commissioners[1949] HCA 1; (1949) 78 CLR 62, at [13] Dixon J said:
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
(See also Webster v Lampard[1993] HCA 57; (1993) 177 CLR 598, 602 (Mason CJ, Deane & Dawson JJ); Spencer v The Commonwealth[2010] HCA 28; (2010) 241 CLR 118 [24] (French CJ & Gummow J).
It is also important to consider whether, if the matter was allowed to proceed to trial in the ordinary way, the facts then adduced show “light and colour upon the resolution of the legal questions”. (British American Tobacco Australia Ltd v The State of Western Australia[2003] HCA 47; (2003) 217 CLR 30 [103] (per Kirby J)).
In his affidavit filed 18 September 2018, the husband said he had paid a number of expenses relating to the wife because he believed she was unwell and she needed somewhere to live. That said, he had not provided her with the money that would have come from the sale of shares which were the substantial portion of the parties’ assets at trial. He observed that he was the parent who had all of the responsibility for the child. He included in his documents a financial statement that showed he earned about $52,000 per annum. He was renting premises although he made no reference to the fact that he retained an apartment in Israel as part of the property orders. He contemplated that he might have to take on a higher paid job or an extra job about which he said he was fortunate because his skills were in demand but that would be difficult with his responsibilities for the child. These are also child support issues which should not be difficult to sort out as the wife is also working.
The husband had understood the importance of the matters required of him in relation to s 79A of the Act because he used the heading “setting aside the orders” in his affidavit. He stressed the difficulties under which he currently labours with all of the problems that flowed from the assault on the child by his mother. Sad as those matters are, the Court has no evidence other than those matters to which I have referred. It is unlikely that anything more is going to be said. An expanded version of the facts is unlikely therefore to be made at a trial.
Notwithstanding his opportunity to respond to the wife’s case, the husband failed to do so without any explanation. Despite preparing the application himself and not filing any amending material, the husband has had lawyers acting for him since late October. As at the time the deadline for the filing of submissions had arrived, those solicitors were still on the court’s record. I have had enquiries made of the family law registry counter staff as well as the electronic filing system and nothing has been received. Counsel who appeared for the husband has not sought any relisting of the case for an extension of time. Thus, this is not just a case of the husband not responding, but his legal practitioners as well. They have obligations under r 1.08(1)(l) and r 1.08(2) of the Rules. In the circumstances, I have inferred that the husband not only does not wish to be heard, but does not challenge the submissions of the wife.
Counsel for the wife addressed each of the grounds. Insofar as it was suggested by the husband that there was some impracticability about the implementation of the order, it was submitted that the husband had retained the control of the assets and he had the Israeli apartment. The Court had divided the assets as to 55 per cent to the wife and 45 per cent to the husband so the differential in dollar terms was not large but nothing was said by the husband about what orders he would seek and what differential was just and equitable in the circumstances.
In so far as the husband asserted there was some impracticability in relation to the implementation of the order, the wife pointed to the fact that the husband had retained the Israeli apartment. The sale of the shares really only gave rise to the implementation of the wife’s entitlement. The wife was to retain the Melbourne apartment where the encumbrance exceeded the value of the property. Her capacity to retain what was intended by the orders was affected by the sale of the shares. The order for the sale of the shares was to be implemented immediately, rather than the attitude adopted by the husband of endeavouring to achieve the best possible financial outcome for him. The orders were also clear that if there was an insufficient amount of funds from the sale, the husband had to pay the shortfall within 60 days in default of which, the Israeli property was to be sold. Nothing that was put by the husband indicated any impracticability in relation to the implementation of the orders. The absence of any material from the husband to indicate such impracticability was fundamental. Nothing in the written material filed by the husband indicated any such impracticability, and the concept only arose (and was addressed by counsel for the wife as a consequence) in discussions between the bench and counsel for the husband in respect of the adjournment application. The absence of material to support that assertion must mean that as a ground under s 79A of the Act, any such application would be doomed to fail.
The second aspect of the husband’s case, again raised by counsel but without any supporting material, is also devoid of merit. This is that the s 79A (1) ground is that the wife had defaulted in carrying out an obligation under the order. Whatever is asserted against the wife, it is what flows from a positive finding on that assertion that matters. The husband in this case would have to show that there were circumstances arising from the default such that it would be just and equitable to vary the order or set it aside and make another order. Again, the absence of any material to support such an assertion is perplexing. It was only after the crystallisation of the shares that the order creating a division of the assets as to 55 per cent to the wife could be implemented. Having canvassed on two occasions the question of the meaning of the order, I am satisfied that it is unashamedly clear that the shares were to be sold forthwith. The wife’s submission was that the husband was never going to comply except on his own terms. The percentage division of the assets meant that he had an incentive to get the best possible price for them to avoid the prospect of the sale of the Israeli property. It was submitted that after February 2017, the husband obfuscated and gave a variety of excuses none of which I accept could satisfy an argument that the wife was in default.
The correspondence tendered by the wife indicates that the husband, whilst in control of the assets and in particular the sale, tried to renegotiate the various orders. However, the husband took no action and sat on his hands forcing the wife to bring the enforcement application. It was submitted by the wife that therefore there was no merit in the husband’s case at least in respect of the ground for a default by the wife. I accept that submission.
What the husband also endeavoured to do was to negotiate a reduction of the payment that he had to make to the wife on the basis of offsets. He did not have that right. To the extent that there was any basis to reclaim money paid to the wife, it was submitted that it could have been done through an enforcement application. The husband did not have the right to make variations of the order. That could have been done under s 79A (1A) of the Act but that did not occur here. However, a fair reading of paragraphs 6, 8 and 14 of the Initiating Application filed 18 September 2018 may be part of an enforcement application or possibly a variation of the orders such that they might be a machinery provisions issue. Those proposed orders were not supported by any submission and I am unsure what to do with them, as the substantive parenting application remains alive, I shall leave those particular paragraphs for another day.
Applying the test of whether there is any basis to say that there was a reasonable likelihood of success, the absence of submissions and affidavit material must mean that the husband has little to say. Searching for something that might give rise to such a ground reveals nothing. In the circumstances, there is no reasonable likelihood of the success of that ground.
In respect of the apparent basis articulated by the husband prior to being legally represented, s 79A(1)(d) of the Act is the provision that I understood that he relied upon initially. It was submitted that there was no further evidence that the husband could provide. Since the incident involving the child in December 2017, it is indisputable that the parenting situation has changed from the nine days and five days per fortnight that was provided under the orders. Both parties are working and it was submitted that to the extent that any material financial change relating to the support the child had consequently arisen, it could be adequately dealt with by child support. The husband still has the Israeli property and his application for the international relocation to Israel was unsuccessful. He therefore has that property as a resource that he could use to ameliorate any housing needs that he has in Australia. It was submitted that not only was there no particularisation of any change of circumstance such as the one that might have been raised but further, it was unclear just exactly what the husband was proposing in any event. The opportunity to particularise not only the contemplated change of circumstances relating to the child but also what order he would seek, should have been completed prior to the hearing on 1 November 2018, and it was not. In any event, it should have been completed by 16 November 2018 as provided in the orders. Again, it was not.
It was submitted therefore that the husband did not identify not only hardship but neither did he not identify exceptional circumstances. It was submitted therefore that there was no reasonable likelihood of success.
While this is not a case of a child changing households within what has at times been termed the ordinary vicissitudes of life (see Simpson & Hamlin [1984] FamCA 62; (1984) FLC 91-576) the child is 9 years of age and as such, subject to what happens in the County Court proceedings, he may spend significant time with his mother if not return to her. I have no doubt that children do change households where they are affected by violence and are in need of protection but at this early stage, I do not know the extent to which this assault was attributable to the mother’s mental illness. I do not know the extent to which this was a deliberate physical attack on the child but then again, the police have charged her with offences that require not just mens rea but also proof beyond reasonable doubt. A complete upheaval of the child’s life is what is under consideration here and it may be that if the criminal charges are proved, the father will not only have no physical assistance from the mother in the care of the child but also no financial support either. If that was the case, it might be a basis to consider the circumstances exceptional but also of significant hardship to both the child and the husband but that evidence is not available to me. It is inappropriate to speculate.
In Masters & Cheyne [2016] FamCAFC 255, the Full Court observed that the words “exceptional circumstances” and “hardship” had to be interpreted by reference to their ordinary meaning but also by reference to the statutory context in which they were used. I interpret the words to mean out of the ordinary or unusual. The circumstances do not have to be unique or unprecedented but rather, things that are unusual. In my view, absent more plausible evidence, and there is none here, the application to set aside the orders cannot succeed.
The Initiating Application filed on 18 September 2018 also contained paragraphs seeking relief for which no apparent power exists[5]. Those are matters that should be dealt with between practitioners.
[5] See (16) of the Orders sought in the Initiating Application filed 18 September 2018.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 November 2018.
Acting Associate:
Date: 20 November 2018
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