Stokes and Stokes

[2010] FamCA 1007

FAMILY COURT OF AUSTRALIA

STOKES & STOKES [2010] FamCA 1007

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Rule in Rice v Asplund

APPLICANT: Mr Stokes

RESPONDENT: Ms Stokes

INDEPENDENT CHILDREN’S LAWYER: Bucknall Family Lawyers

FILE NUMBER: BRC 9391 of 2007

DATE DELIVERED: 11 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 12 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Barbour of Anthony Black Lawyers

COUNSEL FOR THE RESPONDENT: Mr Sara, instructed directly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bucknall of Bucknall Family Lawyers

Orders

1. Paragraphs 8 and 9 of the mother’s application filed on 11 March 2010 are dismissed.

2. The father’s application in relation to the parenting application is dismissed.

3. The matter is adjourned to 10.00am on 9 March 2011 for trial for three days.

4. The applicant is to file all affidavit material on which she intends to rely by 4.00pm on 14 February 2011.

5. The respondent is to file all affidavit material on which he intends to rely by 4.00pm on 28 February 2011.

6. The applicant is to file any document in response to the respondent’s material by 4.00pm on 2 March 2010.

7. The Independent Children’s Lawyer is to file any document on which she intends to rely by 4.00pm on 2 March 2010.

8. Each party must lodge in the Court by (2 clear days prior to trial) a document containing the following:

   (a)      A minute of orders sought by that party.

   (b)A brief and concise statement of the material facts asserted by the party in support of the orders sought.

   (c)A proposed minute of order in the event the other party’s case is made out.

   (d)A list of the affidavits each party proposes to rely upon at trial.

9. Otherwise, all outstanding applications are dismissed.

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

FAMILY COURT OF AREADY USTRALIA AT BRISBANE

FILE NUMBER: BRC 9391  of 2007

MR STOKES

Applicant

And

MS STOKES

Respondent

REASONS FOR JUDGMENT

1. On 3 June 2005, an extensive Consent Order was made in this Court and I refer to it but do not intend to incorporate it in full since it is exceptionally lengthy.  It deals not only with property as between Ms Stokes and her then husband, Mr Stokes, but also with children’s matters.  The property settlement orders are from paragraph (1) to (26) and the parenting issues take up paragraph (27) to (49) of the Order and there are notations numbered from (a) to (e) inclusive.

2. On 11 March 2010, Ms Stokes, hereinafter referred to as the wife, applied for the property settlement Orders made on 3 June 2005 to be set aside pursuant to section 79A of the Family Law Act.  For interest sakes only, the wife now seeks the distribution of the asset pool that exists today, such that the respondent receives 60 per cent and the applicant 40 per cent.  I note in passing that there is no Financial Statement filed in support of the application of 11 March 2010.

3. On 7 June 2010, an application was filed by the husband in which he sought that the wife’s application filed on 24 June 2009 and amended application on 11 March 2010 be dismissed.  He also in that application raises the question of Rice v Asplund in relation to a parenting order.  The parenting order to which he refers in his application of that date, ie 7 June 2010, was made on 30 January 2008 by Wilson Family Court Magistrate as he then was.

4. I will deal with the question of the summary dismissal of the application made by the applicant in his application dated 7 June 2010 in relation to property first.  At all material times up to the making of the order the wife, Ms Stokes, was represented by an experienced family law accredited firm.  An enormous amount of material most of which is totally irrelevant to these proceedings has been filed and is of little or no assistance.  From this material it appears that negotiations were long, extensive and difficult, eventually leading to the consent order.

5. I quote from Pelerman v Pelerman:

   “It is well established that the following principles apply:

   (a)the power for summary dismissal is a discretionary one;

   (b)relief “is rarely and sparingly provided”;

   (c)the parties see summary dismissal must show that the applicant is “doomed to fail” or has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is purely frivolous or vexatious”;

   (d)a weak case or one that is unlikely to succeed is not “sufficient to warrant termination”;

   (e)“if there is a serious legal question to be determined it should ordinarily be determined at a trial”;

   (f)“if notwithstanding the defects or pleading, it appears that a party may have a reasonable cause of action which it has failed to put in a proper form, a Court will ordinarily allow that party to reframe its pleadings.””

6. Kirby J, as he then was, in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 said:

   To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action.

7. Naturally, of course, section 79A(1)(a) indicates that a Court may vary or set aside an Order made under section 79 if it is satisfied there has been a miscarriage of justice or any of the following:

   ·       fraud;

   ·       duress;

   ·       the giving of false evidence;

   ·       the suppression of evidence;

   ·       or any other circumstance.

8. I am aware that the divisions of section 79A(1)(a) apply only to circumstances existing at or before the time of the original property order and not the circumstances occurring afterwards – see Molier v Van Wyk (1980) FLC 90-991. I am further mindful of the fact that I have to determine this application on the wife’s material and accept such material except to the extent that any of the allegations of fact are incredible.

9. In the plethora of material put before me, and I say in passing that it consists to me of five affidavits together with extensive exhibits.  The grounds upon which the wife indicates that her application should be accepted seem to be encapsulated, as I asked her counsel Sara in his submissions, at page 11 of the written submissions prepared on behalf of the respondent. 

10. If I may take each of those matters seriatim: 

11. (1)  The mother refers to this amount of $371,000 being particularised in her affidavit of 30 July 2010 at paragraph 54.  The only affidavit of 30 July 2010 put before me does not have a paragraph 54, and a search by my staff in relation to the extensive files (3 boxes) in this case, indicate no affidavit was filed on that date.  But it is referred to in paragraph 19 of the affidavit filed on 11 March 2010.

12. Doing the best I can, it appears the only thing I can say is that there was disclosure by the husband through his financial statement.  Various matters were disclosed as detailed in the husband’s solicitor’s letter dated 31 January 2005, but I note in his affidavit of 7 June 2010 at paragraph 3, he indicates that his financial statement discloses that the parents had loaned him money (see Financial Statement filed 26 November 2002, par 50).  The fact that the wife did not seek any further or better disclosure, I think, shows clearly her attitude towards the whole of the matter.

13. (2) If, in fact, as was the case, that the father was to indemnify the wife for debts of the “S” business as at 10 June 2005 that was the end of the matter. Whether or not there were monies owing up until 10 June 2005 was a question of enforcement, not of variation and would not come within the provisions of section 79A(1) in any of the sub-headings required of the husband.

14. Notwithstanding that I have concentrated upon the written submissions prepared on behalf of the wife, I would indicate that looking at her affidavits, in particular her affidavit of 2 August 2010, she seems to indicate that she is claiming that the matter should, in effect, be re-opened pursuant to the provisions of section 79 by (3) negligence of Messrs Barry & Nilsson, see paragraph 17 of 26 July 2010 wherein she refers to the perfunctory attitude of legal advisers.  This is not a ground under s 79(a).  I note there were two affidavits filed on 26 July 2010.

15. It is quite clear on the authorities that the negligence of a solicitor is not sufficient grounds for setting aside or re-opening a matter pursuant to the provisions of section 79A and I refer briefly to McIntyre v McIntyre (1994) FLC 92-468.

16. (4) At paragraph 55 of the aforesaid affidavit, she has a heading “Contravention – Respondent to indemnify wife against unpaid suppliers” – enforcement is not a ground for setting aside and/or varying an Order under section 79.

17. There are various complaints (see par 31 of the affidavit of 26 July 2010).  I have touched upon the so-called fraud allegation wherein she alleges that the property at N was more likely to be valued at $2.5 million. 

18. There are various complaints in relation to the sub-heading “Non-disclosure in the respondent’s financial affidavit” such as figures not adding up; illegal that he paid no child support; and goes on and on making, in my view, unjustifiable allegations which she believes are sufficient to bring herself within the relevant section.  I do not believe so.

19. The wife’s case is based, as I read it and I confess that I have great difficulty in understanding the thrust of her submissions, that she knew of all of the things of which she complains but is complaining of the fact that no evidence was brought forward to prove the existence of the facts.  As I have said briefly before, and I re-iterate, in my opinion disclosure is only necessary when the party is called upon to disclose.  This was done in some cases and not in others.  I do not believe that anything in the enormous amount of material put before me indicates that there was any failure on the part of the husband to indicate the facts upon which he was relying, rather there appears to be an absolute lack of the wife seeking disclosure of the evidence to support such facts.

20. The wife has a further heading of “Duress”.  She indicates that the respondent had problems with anger management and that inter alia she was subjected to significant mental and physical abuse.  I do not understand from those paragraphs under the subheading “Duress” (see pars 34-43) that in any way it is suggested that the anger management techniques of the husband were such that she was compelled to enter into the consent order to which we have frequently referred.  She goes on (see pars 44-62) to set out in full what she considers to be the difficult text message, tormenting by the husband and his family violence.  These matters, of course, were something that were in existence prior to the consent order being reached and there was no mention by the applicant mother for a period of five years since such order was brought about, even wholly or in part, to the duress, as she refers to it.  Further, in her affidavit of 11 March 2010 no mention of any form of duress caused her to enter into the consent order  (see pars 34-62).

21. I have touched upon the subheading “Incompetent Negligent Legal Advice”.

22. I note that it has been alleged in Pelerman that it must be shown that the wife’s case must be doomed to failure before the provisions of summary dismissal do apply.  In my view, that takes it too far.  It is, as is set out in the Rule, the failure of the wife, in this case, to show a reasonable cause of action and that there is little likelihood of success.

23. I am more than satisfied that there is little likelihood of success.  I am satisfied, notwithstanding that I think it is taking it too far, that the application is doomed to failure.  I will dismiss the application.

24. May I say in passing that I commend the solicitor who acted on behalf of the respondent for the submissions which she has put before me.  I make it quite clear that this almost impossible task posed to the court was made somewhat easier by her in-depth submissions and I compliment her.

25. The wife has made an application for an order in effect re-opening the hearing of the parenting matter which was determined, as I understand with great difficulty from the submissions and the material before me, was decided by a former Federal Magistrate Wilson in 2008, ie 30 January 2008. 

26. I have read the order of former Federal Magistrate Wilson which was made on 30 January 2008.  I note that the parties were represented, the father, Mr Stokes, by Dr Sayers of Counsel, Mr Blond of Counsel appeared on behalf of the respondent mother and Mr Linklater-Steele appeared for the Independent Children’s Lawyer.

27. The order is extensive in its circumstances.  I note with some alarm the notation which is set out at AA at page 10 of the orders.  The notation is as follows:

    “The parties concede that for the purposes of this application neither party raises any threshold issue relevant to the decision of Rice v. Asplund and for the purposes of any future litigation between the parties nor shall a party raise an argument that any threshold issue relevant to the decision in Rice v. Asplund applies at any date prior to these orders.

28. In the aforesaid Amended Initiating Application filed on 11 March 2010 further orders were sought in the application to which I have hereinbefore referred in relation to the s 79A application there are other applications within, but the prime application, as I understand it, is whether the principle of Rice v Asplund applies to this case.  If so, whether in fact I should consider that the facts as contained in the evidence before me are sufficient to overcome such principles as enunciated in Rice v Asplund.  And there are other matters which I have to decide but which I will decide at a later stage.

29. I say first up that insofar as the Order of former Federal Magistrate Wilson is concerned, being 30 January 2008, I have noticed something which was not brought to my attention and which I do feel somewhat concerned about, that at page 10 of the file copy of the order, the following appears:

    “AND THE COURT NOTES:

    The parties concede that for the purposes of this application that neither party raises any threshold issue relevant to the decision of Rice v Asplund and for the purposes of any future litigation between the parties, nor shall a party raise an argument that any threshold issue relevant to the decision in Rice v. Asplund applies at any date prior to these orders.”

30. As far as this is concerned, it seems to me that there is a notation that the parties between themselves, ie inter se, have agreed that they will not raise any issues in relation to Rice v Asplund.  I do not consider that this is of much moment, notwithstanding the fact that it was not brought to my attention because there is no way that I would have thought the parties could ask the power of the Court to consider authorities which initially started with Rice v Asplund  were excluded by mutual agreement.

31. I do not know how this agreement between the parties would be enforced because if one party sought an injunction restraining the other party from raising Rice v Asplund it would appear to be an attempt to end the power of jurisdiction of this Court.  To me it appears that there are authorities to the effect that notwithstanding Rice v Asplund may not be raised by the parties, it should be raised by the judge.

32. The extensive orders in relation to parenting matters for the child were made some two years ago on 13 January 2008.  It is submitted by the applicant mother that since that time there have been considerable changes to the circumstances of the child in relation to parenting matters and that such circumstances are of sufficient gravity to be persuaded the doctrine of Rice v Asplund does not apply and that I should therefore proceed to hear the matter ab initia.

33. The solicitor for the respondent to the application submits that Rice v Asplund should apply and that there is insufficient evidence before me to overcome the “hurdle” of Rice v Asplund.  I refer to primarily Rice v Asplund 1979 FLC 90-725, but further in King v Finneran 2001 FLC 93-079 at page 88,367 to 88,369 it was said by Collier J:

    “To apply the test in Rice v. Asplund is to make an assessment on the material then available to the Court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children the subject of the litigation to allow further proceedings.  In arriving at such a decision the Court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children.  It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.  This is not always a clear distinction.”

34. He went on further to say:

    “Clearly, both were significant and substantial and indicates something out of the ordinary course of events.  If either significant or substantial is to indicate a matter is of importance or consequence of real worth or ample or considerable amount, quantity, size, etc.  When related to a change in circumstances this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time in the usual course of human activity.”

35. The principles as enunciated by Collier J were accepted by the Court of Appeal in Bolitho v Cohen [2005] FamCA 458 93-224 wherein they said:

    “Prior to allowing the parties to relitigate the issues of parenting arrangements the Court must be satisfied that there has been a significant change to the parties’ circumstance.  The change or fresh circumstances must be such that on becoming advised of it and being satisfied of its existence the Court will be left in no doubt (my underlining) that it was necessary to relitigate the parenting issues that ……between the parties.  This is not to say that the Court must be satisfied that the fresh or change in circumstances would result in a change to the order.  It merely indicated that change or fresh circumstance must be such that I taken into account there is a real likelihood that the change may follow.”

36. There must, in my opinion, be some change in circumstances of such serious and/or significant factor that it would be necessary to revisit the parenting question which was revisited in this case in January 2008.

37. The mother has set out in her extensive material allegations which should, she says, concern me. It appears generally that such allegations to me are unfortunately only too prevalent in cases where, as in this case, that the parties are unable to rationally consider the welfare of the child.  This has been commented upon by various experts in other cases and is commented upon by Ms B in her reports which are before the Court.

38. The mother wishes to relocate from the area in which she presently resides to northern Queensland where she says she wishes to further promote her relationship between herself and a Mr T and she has more opportunities to seek work in her profession.  Evidence is before me that she has formed a relationship with Mr T initially by Internet and that this relationship has blossomed and she now alleges that she is engaged to this gentleman who is engaged in a profession in northern Queensland.

39. Regrettably I am unable to find, notwithstanding the plethora of material, any affidavit from Mr T supporting the evidence of the mother that it is his intention to intermarry with her and that he is able to adequately support the mother in looking after the child.  There has been at least one occasion where the mother has suggested that she had a relationship with another person and that the relationship as between herself and him has broken up.  The respondent father makes much of the fact that this gentleman has in fact criticised the mother.

1. The point that concerns me is that Ms B, in her final report which is dated 19 April 2010 a copy of which is exhibited to one of the father’s affidavits, is of the opinion, and I refer to 11.2.6 wherein she says:

   “The issue of the mother’s proposed relocation to [northern Queensland] with [the child] is the major one for the court to consider.  The mother’s new partner would appear to be a suitable person for [the child] to have as a step father, although I am reliant on a telephone interview and the comments by [the child] and the mother for this opinion.  [The child] will be able to access a good education in [northern Queensland] – even if not of the same standard as that available at [the child’s current school].  The father has expressed the opinion that the mother’s relationship with Mr [T] will not last.  He is basing this on the fact that the mother’s previous relationships have failed.  No one can know the future of this relationship (or any relationship for that matter).  The mother has proposed only holiday time for [the child] with the father.  The father believes a move to [northern Queensland] will be the thin edge of the wedge and that the mother may even take [the child] further away if allowed to take her to [northern Queensland].  He did not state it, but it seems he is worried that she will be taken to Sweden where the mother’s family live.  The mother has said she would like to take [the child] there for a holiday and possibly to study at a later date.  Orders also need to be made about a passport for [the child] and about future overseas travel”

2. The father opposes any form of relocation as Ms B says, understandably, because he is of the view that there would be a negative impact on his relationship with the child in general of a move to northern Queensland, see 11.2.8 of the aforesaid report.

3. In her recommendations, at 12.3, Ms B is of the opinion that if they move there should be considerable times for the child to spend with her father.  This is a question which, as I understand, needs to be ventilated in full.  It may be that no further evidence will be forthcoming from the parties in relation to such application.  I will be asking when I deliver my reasons for judgment in this application whether they wish to put any further evidence before the Court.

4. Notwithstanding it appears I may have ignored other complaints on the part of the father, and other complaints on the part of the mother in relation to the Rice v Asplund principle, to me it appears that the movement of the child from a reasonably close geographical relationship to the father to northern Queensland is a matter which is of sufficient and/or serious concern to enable me to reconsider.  Not a relocation application per se, but the whole of the facts in relation to the parenting of the child. 

5. In those circumstances, I would consider that the Rice v Asplund hurdle has been overcome and that the matter should proceed to trial.

6. The father has, in his application, sought an order that my order of April 2010 wherein I made directions for trial be stayed until this matter has been determined, that is the matter of the Rice v Asplund discrete question.  Seeing I have determined it, I will make orders varying that order in relation to the trial matter.  In the circumstances, I will make orders for trial on the matter related solely to the parenting of the child.

7. Being of the opinion that the applicant, in relation to the s 79(a) application has no reasonable chance of success, nor a reasonable cause of action, I dismiss paragraphs 8 and 9 the orders sought by the applicant.

8. I dismiss the respondent father’s application in relation to the parenting application.

9. I order that the matter be set down for trial for three days commencing at 10.00am on 9 March 2011.

10. I amend my orders made in relation to directions to the following dates:

    (1)The applicant is to file all affidavit material on which she intends to rely by 4.00pm on 14 February 2011.

    (2)The respondent is to file all affidavit material on which he intends to rely by 4.00pm on 28 February 2011.

    (3)The applicant is to file any document in response to the respondent’s material by 4.00pm on 2 March 2010.

    (4)The Independent Children’s Lawyer is to file any document on which she intends to rely by 4.00pm on 2 March 2010.

    (5)Each party must lodge in the Court by (2 clear days prior to trial) a document containing the following:

    (a)      A minute of orders sought by that party.

    (b)A brief and concise statement of the material facts asserted by the party in support of the orders sought.

    (c)A proposed minute of order in the event the other party’s case is made out.

    (d)A list of the affidavits each party proposes to rely upon at trial.

11. Otherwise, the applications are dismissed.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 9 November 2010.

Associate:     

Date:              11 November 2010