Telford & Telford
[2022] FedCFamC2F 876
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Telford & Telford [2022] FedCFamC2F 876
File number(s): SYC 1050 of 2016 Judgment of: JUDGE DICKSON Date of judgment: 6 July 2022 Catchwords: FAMILY LAW – Parenting - Rice v Asplund application – where final orders were made in September 2020 following a six day Trial – where father was unhappy with final orders but did not file an Appeal - father now seeks to reopen litigation on account of an alleged change of circumstances – mother seeks that the father’s application be summarily dismissed or dismissed on the grounds of no change of circumstances – father’s application filed a short period after final orders – where no significant change of circumstances - where it is not in the children’s best interests to re-open the litigation – applications dismissed
COSTS – mother seeks a cost order against the father – where father submits he has a modest income – impecuniosity is not a bar to a cost order being made -where father has been wholly unsuccessful in his application – order for father to pay mother’s costs of and incidental to the application
Legislation: Family Law Act 1975 (Cth) ss 45A, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited: Aldred & Aldred; Westpac Banking Corporation [1986] 10 FamLR 1083
Arthurman & Arthurman [2019] FamCAFC 214
Bigg & Suzi [1998] FamCA 14, (1998) FLC 92-799
Carriel & Lendrum (2015) FLC 93-640
D & D (Costs)(No 2) (2010) FLC 93-435
Ferreday & Layh [2021] FamCA 648
Freeman & Freeman (1987) FLC 91-857
Hunter & Hunter [2014] FamCA 199
I & I (No.2) [1995] FamCA 80, (1995) FLC 92-625, 22 Fam LR 557
Jenkins and Anor & Jenkins and Anor [2011] FamCAFC 69
Josephs & Lorenzo [2022] FedCFamC2F 506
Karlsson & Karlsson [2020] FamCAFC 207
Lysaght Building Solutions Proprietary Limited (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27
McEnearney & McEnearney (1980) FLC 90-866
Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158; (2005) 33 Fam LR 123
Pelerman& Pelerman [2000] FamCA 881
Rice v Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Taylor v Taylor (1979) 25 ALR 418
Division: Division 2 Family Law Number of paragraphs: 85 Date of hearing: 10 June 2022 Place: Adelaide The Applicant: Appeared in person by Microsoft Teams Counsel for the Respondent: Ms Tabbernor by Microsoft Teams Solicitor for the Respondent: L & M Law ORDERS
SYC 1050 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TELFORD
Applicant
AND: MS TELFORD
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
6 JULY 2022
THE COURT ORDERS THAT:
1.The father’s Initiating Application filed 26 August 2021 and Amended Initiating Application for Final Orders filed 29 November 2021 be dismissed.
2.The mother’s Response to Initiating Application filed 28 October 2021 be dismissed.
3.That within ninety (90) days of the date hereof the father do pay to the mother costs of and incidental to this application fixed in the sum of TWELVE THOUSAND DOLLARS ($12,000.00) plus GST.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Telford & Telford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
On 10 June 2022 the Court heard argument between the parties. The matter was listed on the mother’s preliminary application to have the father’s application dismissed pursuant to the rule in Rice v Asplund, or in the alternative, summarily dismissed. These are the Court’s reasons arising from the argument that day.
BRIEF BACKGROUND
The parties this matter are the applicant father Mr Telford (‘the father’). The respondent mother is Ms Telford (‘the mother’).
The father was born in 1980 and is currently aged 41 years. The mother was born in 1983 and is currently aged 39 years.
The parties met in 2007 and were married in Country BN in 2010. The parties separated for the final time on 19 February 2016.
On 9 October 2017, the parties were granted a civil divorce.
The parties have two children Y born in 2016 in (‘Y’) now aged 10 years and Z born in 2013 (‘Z) now aged eight years (collectively ‘the children’).
On 25 February 2016, the mother filed an Initiating Application in the Federal Circuit Court of Australia (as it was then known). Litigation in relation to the children proceeded until a Judgment was delivered by The Honourable Justice Harper on 18 September 2020. The delivery of Judgment followed a Trial which took place between 17-21 February 2020 and 7 April 2020.
At the date of Trial, the children were represented by an Independent Children’s Lawyer.
The final orders made by the Court on 18 September 2020 (‘the final orders’) are comprehensive and include some 51 separate orders following on from the final hearing. The Judgment delivered by the Court runs to 337 paragraphs.
It is not necessary for the purposes of the argument currently before the Court to recite in full the comprehensive final orders made by the Court at final hearing.
At the date of argument on 10 June 2022, the Court file is now contained in three separate boxes, such is the voluminous amount of material that has been filed since litigation first commenced over six years ago in February 2016.
CURRENT LITIGATION
On 26 August 2021, the father filed an Initiating Application which sought by way of final order:
1. Final orders were made on 18 Septemebr (sic) 2020. The applicant seeks to vary the final orders.[1]
[1] See father’s Initiating Application filed on 26 August 2021.
By way of interim order, the father sought variations to the orders made on 18 September 2020 which broadly sought to increase the children’s time with the father, clarity in relation to special Religious occasions and sought the ability of the children to travel overseas with either parent.
By way of Response to Initiating Application filed on 28 October 2021, the mother sought on a final and interim basis the following orders:
1.The Applicant’s Initiating Application be summarily dismissed pursuant to Rule 10.09 of the Federal Circuit and Family Court (Family Law) Rules 2021; and
2.The Applicant pay the Respondent’s costs of an (sic) incidental to the Application.[2]
[2] See mother’s Response to Initiating Application filed on 28 October 2021.
By way of Amended Initiating Application filed 29 November 2021, the father no longer sought interim orders but sought the following final orders:
That the Orders made on 18 September 2020 be varied as follows:
1.That Order 7 (b) be varied to:-
Each alternate weekend from completion of school Wednesday to commencement of school Monday:
2.That Order 8 be varied to:-
a. From conclusion of school on the last day of school attendance in Terms 1, 2 and 3 until 5:00 pm on the middle Sunday of the school holidays; and
b. From conclusion of school on the last day of school attendance in Term 4 until 5:00 pm on the middle Sunday of the school holidays.
c. Otherwise as agreed between the parties.
3.That Order 10 (g) be varied to:-
(i)In even-numbered years, commencing at 3:00 pm the afternoon of the commencement of the [Religious Festival 7] and for four (4) consecutive nights concluding at 9:00 am on the fourth day with the mother, and from 9:00 am on the fourth day until the eighth day of [Religious Festival 7] with the father.
(ii)In odd-numbered years, commencing at 3:00 pm the afternoon of the commencement of the [Religious Festival 7] and for four (4) consecutive nights concluding at 9:00 am on the fourth day with the father, and from 9:00 am on the fourth day until the eighth day of [Religious festival 7] with the mother.
4.That Order 10 (i) be varied to:-
(iii)If a changeover is scheduled to take place on a Saturday, provided that the Saturday does not run into [Religious festival 7], the children will be exchanged one hour after the conclusion of the Sabbath.
5.That Order 11 (d)(e) be varied to:-
(d)On the children’s religious birthdays, when the children are not otherwise spending time with the father in accordance with these Orders, and his birthday falls on a school day, from the conclusion of school until 6.30 pm or otherwise from 11:00 am until 5:30 pm if such a day is not a school day;
(e) Such other times as agreed between the parents.
6.That Order 14 be varied to:-
That for the purposes of changeovers which do not occur at school, collection and delivery of the children shall occur in front of Woolworths, K Shopping Centre, or such other location or manner as the parties agree in writing.
7.That Order 37 be varied to:-
(a) That upon the giving of reasonable notice, the mother shall be entitled to remove the children from the jurisdiction for the purpose of overseas holidays provided such holidays fall within a time with the children will be otherwise with her pursuant to these Consent Orders and preferably during the course of school holidays and the father’s consent to such holidays shall not be unreasonably withheld.
(b) That upon the giving of reasonable notice, the father shall be entitled to remove the children from the jurisdiction for the purpose of overseas holidays provided such holidays fall within a time with the children will be otherwise with him pursuant to these Consent Orders and preferably during the course of school holidays and the mother’s consent to such holidays shall not be unreasonably withheld.
(c) That in proposing any overseas holiday, each parent shall provide to the other parent an itinerary as well as contact particulars where the children can be contacted during the course of such holidays and the parent having care of the children for that holiday will do all such things as may be necessary to ensure the children have access to telephone, Skype or other appropriate electronic means of communication so they may communicate with the other parent during the course of such holidays or the other parent may communicate with them during the course of such holidays at all reasonable times.
(d) That the parent traveling with the children shall put up a $20,000 bond as surety that they will return the children to Australia.
(e) That the mother will retain the children’s passports and, in the event the parties agree for the father to travel internationally with the children, will provide the passport to the father within forty-eight (48) hours of being requested to do so but no sooner than fourteen (14) days prior to the date of departure and on the father’s return from travel with the children, he will return the passport to the mother within seven (7) days of such travel.[3]
[3] See father’s Amended Initiating Application filed on 29 November 2021.
The father’s Initiating Application was filed less than 12 months after final orders had been made by the Court following a six day Trial.
ORDERS OF THE COURT
The current proceedings first came before the Court on 15 November 2021 before Judicial Registrar Maitland. Orders were made referring the matter to the National Assessment Team for consideration for a Compliance and Readiness Hearing of listing for a summary dismissal (Rice & Asplund threshold) before a Judge.
It was further noted that the hearing was estimated to take two hours and was unlikely to require cross examination.
On 8 March 2022, the matter came before the Honourable Chief Judge Alstergren (sitting in Division 2 of this Court). On that occasion, orders were made as follows:
1.The matter be listed for a defended hearing on 10 June 2022 at 10:00am before Judge Dickson, for an estimated duration of 1 day.
Trial Directions
2.No later than 21 days prior to the trial date, the Applicant file and serve:
a. any Amended Initiating Application setting out with particularity the precise final orders sought;
b. an updated single consolidated trial affidavit;
c. other witness affidavits upon which they intend to rely; and
d. in property proceedings, an updated Financial Statement.
3.No later than 14 days prior to the trial date, the Respondent file and serve:
a. any Amended Response setting out with particularity the precise final orders sought;
b. an updated single consolidated trial affidavit;
c. other witness affidavits upon which they intend to rely; and
d. in property proceedings, an updated Financial Statement.
4.No later than 7 days prior to the trial date:
a. the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent(s)' affidavits; and
b. the Independent Children's Lawyer file and serve any affidavits relied upon.
5.No later than 2 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
a. a list of the material relied upon;
b. a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
c. in a parenting case, a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought;
d. in a property case, a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:
i.the assets and liabilities available for division;
ii.the value of items where the value is in dispute;
iii.contributions claimed or contended for and the percentage-based adjustment on contributions contended for;
iv.relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for; and
v.any further factors relevant to determining a 'just and equitable' division of property.
6.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
7.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
8.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
AND THE COURT NOTES THAT:
A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D. If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.[4]
[4] See Orders of Chief Judge Alstergren dated 8 March 2022.
Neither party complied with the direction made by the Court to file and serve an updated single consolidated affidavit as ordered by the Chief Judge. However, each of the parties relied upon one affidavit only for the purpose of the hearing before me on 10 June 2022 as identified in their respective Outlines of Case.
DOCUMENTS RELIED UPON
At the hearing, the father relied upon the following documents:
(1)Initiating Application filed 26 August 2021;
(2)Notice of Risk filed 26 August 2021;
(3)Family Dispute Resolution Certificate filed 26 August 2021;
(4)Amended Initiating Application filed 29 November 2021;
(5)Affidavit of the father filed 23 December 2021 (‘the primary affidavit’); and
(6)Outline of Case Document filed 10 June 2022.
The mother relied upon the following documents:
(1)Response to Initiating Application filed 28 October 2021;
(2)Affidavit of the mother filed 28 October 2021;
(3)Notice of Child Abuse, Family Violence or Risk filed 28 October 2021;
(4)Costs Notice pursuant to Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(5)Outline of Case Document filed 8 June 2022.
THE FATHER’S POSITION
In summary, the father seeks to:
(1)Increase his time with the children;
(2)Vary the orders for special occasions;
(3)Vary the orders for handovers; and
(4)Secure an ongoing order in relation to overseas travel and the children’s passports.
The father deposes in his primary affidavit that after:
receiving the final orders, I noticed several issues of concern, such as there are conflicting orders concerning some [Religious] Festivals, issues in relation to school holidays, complications with the changeover location and the children were not granted any of their birthday time with me. (sic)[5]
[5] See affidavit of the father filed 23 December 2021 at [14].
The father concedes that he did not appeal the decision delivered by the Court dated 18 September 2020 explaining that:
after 5 years in litigation and being alienated from the children, I wanted to focus my time on rebuilding and strengthening my relationship with the children.[6]
[6] Ibid at [15].
The father goes on to depose that since the final orders were made:
…more issues have become apparent. Some are new issues arising, while others became more pertinent due to the Covid 19 Pandemic and related government-imposed lock downs.
In paragraph 9 of the father’s Outline of Case document, he summarises the application to vary the final orders “on the grounds of significant change” as follows:
(a) The father is no longer working [overseas] and is now available to spend more time with the children. The father’s [overseas] employment came to an end with the onset of the global Covid-19 pandemic. He is now settled and working in Sydney.
(b)When the final orders were made, international travel to and from Australia was not viable. In 2021 and 2022 the father emailed the mother requesting to take the children overseas. The mother refused. In his judgement, his Honour Justice Harper recognised that by not making orders allowing for international travel, this could invite a further application to the court. The father now wishes to travel with the children internationally.
(c)The Covid-19 global pandemic brought significant changes to the lives of the children and to the application of the orders of which were not foreseen during the February 2020 final hearing:
(i)At the time the father made his application, the children were not attending school. The children have spent a large part of the past two years at home. this has increased their time spent with their mother and being subjected to her negative views of the father. This has caused the children considerable distress.
(ii)The mother did want the children to attend school even after all students in NSW went back to school after two lockdowns. The mother was working full time, and did not attend properly to the children’s home-schooling education. As a result, the children are struggling.
(iii)The children were home-schooled by their father for a week. The mother did not want him to send them to school. This enabled the father for the first time to be involved in the children’s schooling. The father and children recognised the benefit the children could have with the father’s further involvement in their education.
(iv)A mistake was made in the final orders with regards to the default changeover location. This changeover location is largely not suitable. The situation became exasperated during covid-19 and remains problematic. This has resulted in many high conflict changeovers involving security guards and police. The mother refused and continues to refuse to amend the location at the father’s request.
(d)Issues in the final orders around the placement and changeover of [Religious festival 7] holidays and how they fall out during school holidays only became apparent later on. Unless the issues are resolved, the children will struggle at times to have a meaningful school holiday time with their father.
(e)No orders were made in the final orders for the children to spend any of their birthday time with their father. It was only brought later to the father’s attention that this could be a mistake.
(f)The 9:00am Sunday return time during school holidays did not present itself as a major issue when the final orders were made. in the last two years of Covid19, with lockdowns, travel restrictions, and family members needing to self-isolate, traveling anywhere during the school holidays was not given much consideration. Now with Domestic ravel opportunities, the 9:00am Sydney return is an issue
(g)At the time of the final hearing, the father was only aware of the mother having had one significant partner that has been involved in the children’s lives. Since then, she has gone through a couple more partners. The patterns of attachment and rejection or taking their toll on the children as they lose trust of the male role figures in their lives. The father seeks more time with the children to afford more stability to the children.
(h)The mother has increased her involvement with the police targeting the father. She sought a further ADVO application which was later withdrawn by the police. She continues to send the police to the father’s residence to conduct welfare checks. She brings the children with her to speak with the police while she makes reports about the father. All of the above is having a detrimental effect on the children’s emotional and phycological wellbeing and development.
(i)While the children have only aged around 2.5 years since the final hearing, this is a very significant change in their development. While they were younger, they were largely led to believe whatever their mother told them. They now understand that their father lives in Sydney and wants to spend more time with them. They have been communicating with their cousins overseas and want to visit them. They are becoming more vocal, wanting to spend birthday time wither their father. They don’t want to get up at 7:00am on school holidays. They don’t want to attend changeover locations that involve the police. They are persistently asking their father to go to court and ask the judge to make the necessary changes.
The issues identified in the father’s Outline of Case summarise the evidence provided in the father’s affidavit filed 23 December 2021, which I note contains 207 separate paragraphs.
The father submits that based on the evidence provided by him, there is sufficient basis for him to proceed with an application to re-open the litigation and to seek a variation of the existing final orders. Whilst not specifically saying so, the father’s case is that the matters deposed to by him overcome the rule in Rice v Asplund.
THE MOTHER’S POSITION
The mother seeks an order that the father’s application be summarily dismissed pursuant to rule 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) and a “threshold hearing” in respect of whether the father can proceed in line with the principles of Rice v Asplund.[7]
[7] Rice v Asplund (1979) FLC 90-725.
The mother submits that the father has not put forward any proper basis to enable litigation to be reactivated less than 12 months after final orders were pronounced. The mother submits that the correct approach would have been for the father to file an Appeal after Judgment was delivered, which he did not do.
The mother’s position as put in her Outline of Case filed 8 June 2022 is summarised as being:
Simply put, in this case, taking the father’s material at its highest, the Court could not find that he had any prospects of success in reopening the 2020 orders in circumstances where:
a.His Application is predicated on historic matters which predate the 2020 orders and thus were either considered by his Honour, or the father had the opportunity to agitate them at that point;
b.The affidavit evidence has no material change in circumstances rising to the level required by Rice & Asplund;
c.Many of the complaints made by the father in respect of the mother mirror complaints he made against the mother at the time of the final hearing and were considered by Justice Harper at that point; and
d.There is no evidence that the orders sought by the father could reasonably be said to be in the children’s best interests in light of the ongoing poor co-parenting relationship that has been the future of this litigation since 2016, and indeed a feature of the parents relationship since separation – and indeed there can be no sensible suggestion that fresh proceedings are in their best interests.
THE RULE IN RICE V ASPLUND
In the decision of Ferreday & Layh[8] the Honourable Justice Berman correctly summarised the application of what is known as the principle in Rice v Asplund (supra). The principle in Rice v Asplund per Evatt CJ at 78,905:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
[8] Ferreday & Layh [2021] FamCA 648.
As identified in Ferreday & Layh (supra), the question to be considered is whether the principles in Rice v Asplund should apply to prevent the father pursuing his application to reopen the parenting litigation. In Freeman & Freeman[9] Strauss J said at 76,470 to 76,471:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. … The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the orders made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. … Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
[9] Freeman & Freeman (1987) FLC 91-857.
In SPS and PLS[10] per Warnick J, the Court observed and provided clarity as to the magnitude of the change that would justify a rehearing. As stated in that case:
Thus, in my view 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 is not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.[11]
[10] SPS & PLS (2008) FLC 93-363.
[11] Ibid [81].
Justice Berman then goes on to refer to the decision of McEnearney & McEnearney[12] in which Nygh J considered the application of what was then the recent decision of Rice & Asplund (supra). Nygh J said at 75,499:
Having said that I would hasten to add that the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
[12] McEnearney & McEnearney (1980) FLC 90-866.
The Full Court also considered the issue of the Rice v Asplund principle in the matter of Carriel & Lendrum[13] wherein the Full Court said at 80,173:
57.In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
[13] Carriel & Lendrum (2015) FLC 93-640.
In the decision of Jenkins and Anor & Jenkins and Anor,[14] the Full Court was asked to consider whether or not the learned Federal Magistrate had correctly applied the principles in Rice v Asplund in dismissing an application made by one party seeking to reopen parenting applications after final orders were made. In that case, Justice Strickland sitting as the Full Court determined that the Court had correctly determined the application on the basis of the principles of Rice v Asplund, rather than due to compliance or non-compliance with an order directing the parties to attend Family Dispute Resolution counselling. His Honour held:
Any application to re-open final parenting orders must be determined according to the principles in Rice and Asplund, as confirmed by more recent decisions such as SPS and PLS. The presence of order 4 cannot avoid that result.[15]
[14] Jenkins and Anor & Jenkins and Anor [2011] FamCAFC 69.
[15] Ibid [78].
His Honour further found:
The applicant, according to the principles in Rice and Asplund, would still be required to establish that there has been a change in circumstance or some new factor such as to warrant further litigation.[16]
[16] Ibid [80].
In the matter of Josephs & Lorenzo,[17] his Honour Judge Brown beautifully summarised the rule in Rice v Asplund as follows:
[17] Josephs & Lorenzo [2022] FedCFamC2F 506.
79.In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration…
80.However, some degree of change is a necessary corollary of life and should not of itself allow final parenting orders to be easily revisited. Otherwise, to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation.
81. For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.
82. The primary purpose of the rule in Rice & Asplund is to prevent “endless litigation” and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”.
83.Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.
84. Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
85.Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children.
86. It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.
…
89. However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage. If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.
90. Given that the court will often be called upon to apply the principle expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage. It is not a rule which is to be applied formulaically.
91. Rather, the court must examine the evidence available and determine whether, at its highest and without determining its veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing.
…
94. The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation.
95. In arriving at its decision, the court must look to the following matters:
•the importance or seriousness of the issues raised, both individually and where necessary collectively;
•the impact that the issues are likely to have on the best interests of the children concerned;
•whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.
96. The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.
97That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change.
98In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry. In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.
99In Walter & Walter the court in its discussion of this issue noted with approval the reasons of the Full Court in Marsden & Winch:
Nevertheless, there are significant changes that occur 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.
SUMMARY DISMISSAL
The mother seeks an order that the father’s application be summarily dismissed pursuant to rule 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’).
Rule 10.09 of the Rules states that:
A party may apply for summary orders after a Response has been filed if the party claims, in relation to the Application or Response, that:
… after a response has been filed, if the party claims in relation to the application or response that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.[18]
[18] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 10.09(1).
Pursuant to rule 10.09(2), an application under this rule must be made by filing an application in accordance with the approved form.[19]
[19] Ibid r 10.09(2).
The power of the Court to summarily dismiss is contained in section 45A(1) of the Family Law Act 1975 (Cth) (‘the Act’). Section 45A(1) of the Act states as follows:
The Court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting a proceedings or that part of the proceedings; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or part of the proceedings.[20]
[20] Family Law Act 1975 (Cth) s 45A(1).
The power of the Court to summarily dismiss of its own motion an application listed before it which falls within the parameters of section 45A of the Act has long been recognised by this Court. In the decision of Aldred & Aldred; Westpac Banking Corporation[21] Justice Nygh held:
It is now well established that this Court, as a superior Court of record, has an inherent jurisdiction.[22]
[21] Aldred & Aldred; Westpac Banking Corporation [1986] 10 FamLR 1083.
[22] Ibid 1084.
His Honour then goes on to refer to the well-known decision of Taylor v Taylor[23] at 423 per Gibbs J and at 431 per Mason J namely:
That inherent jurisdiction allows the Court to exercise control over proceedings instituted in it, and the extent of that jurisdiction is not limited by statutory provisions such as are found in section 118(1).[24]
[23] Taylor v Taylor (1979) 25 ALR 418.
[24] Aldred and Aldred; Westpac Banking Corp (1986) 10 Fam LR 1083, 1084.
Further, His Honour stated that:
The inherent jurisdiction of the Court is not confined to the dismissal of frivolous and vexatious proceedings in the strictest sense, but extends to the dismissal of actions which “must fail or which the plaintiff cannot prove and which is without solid basis”; Halsbury’s Laws of England, fourth edition, volume 37, Practice and Procedure, paragraph 435, citing Lawrance v Lord Norreys [1880] 15 AC 210 at page 219, per Lord Herschell.[25]
[25] Ibid.
Accordingly this Court has the power to summarily dismiss an application on its own motion.
The onus of persuading a Court that there is no reasonable likelihood of success rests with the application to the application for summary dismissal.[26]
[26] Hunter & Morrison(Summary dismissal) [2014] FamCA 199.
The Full Court of the Family Court (as it then was) helpfully summarised these principles in the decision of Pelerman& Pelerman[27] as follows:
[27] Pelerman& Pelerman [2000] FamCA 881.
(a)The power for summary dismissal is a discretionary one.
(b)Relief “is rarely and sparingly provided”.
(c)The parties seeking summary dismissal must show that the application 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 clearly 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 trial.”
(f)“If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings”.[28]
(original emphasis)
[28] Ibid [46].
In considering whether an application has no reasonable prospect of success, the Full Court in Arthurman[29] cited with approval the decision of the Victorian Court of Appeal in Lysaght Building Solutions Proprietary Limited (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 and noted that:
The test asks whether the application has a “real”, as opposed to a “fanciful”, chance of success. Whilst it must be applied by reference to its own language, the test is nonetheless broader than “hopeless” or “bound to fail”. It must also be borne in mind that “the power to terminate proceedings summarily should be exercised with caution, and thus should not be exercised unless it is clear that there is no real question to be tried” (Lysaght at [35]).[30]
[29] Arthurman & Arthurman [2019] FamCAFC 214.
[30] Ibid at [18].
More recently, in the decision of Karlsson & Karlsson,[31] the Full Court, sitting by way of a single-instance justice, namely Ainslie-Wallace J, delivered a decision on 25 August 2020 which sets out the law as it applies to summary dismissal applications as follows:
[31] Karlsson & Karlsson [2020] FamCAFC 207.
The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman v Pelerman (2000) FLC 93-037). The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi (1998) FLC 92-799 at 84,974–84,975 and adopted the articulation of the principles of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 (“Lindon”) at 544–545, which may conveniently be summarised thus:
• it is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
• the party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
• that a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
• if there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
• where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a court will ordinarily allow that party to reframe the pleadings; and
• the “guiding principle” is doing what is “just”. In Lindon, Kirby J said at [545]:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Her Honour proceeded to consider the question of summary dismissal pursuant to s 45A of the Act and noted that the court may order summary dismissal where it is satisfied that the claim has “no reasonable likelihood of success”.
Indeed, recent authority has preferred to apply the test of “no reasonable likelihood of success” rather than “doomed to fail” (see Spencer v Commonwealth of Australia (2010) 241 CLR 118 where the High Court discussed the “bound to fail” test and Bretton & Bondai [2013] FamCAFC 168 at [59]–[60]).
That is not to say that the power should not, as Lindon said, be exercised sparingly and rarely, but that it will be exercised where it is clear that there is no real question to be tried (see Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 at [35]).[32]
[32] Ibid [38]-[41].
In the decision of Karlsson, Ainslie-Wallace J refers also to the decisions that I have just outlined above, particularly the decision of Pelerman (supra), the decision of Lindon v The Commonwealth (supra) and also the decision of Bigg & Suzi.[33] Her Honour also refers to a recent authority which has:
… preferred to apply the test of “no reasonable likelihood of success” rather than “doomed to fail” (see Spencer v Commonwealth of Australia [2010] HCA 28, where the High Court discussed the “bound to fail” test and Bretton & Bondai [2013] FamCAFC 168 at [59]-[60]).[34]
[33] Bigg & Suzi [1998] FamCA 14, (1998) FLC 92-799.
[34] Karlsson & Karlsson [2020] FamCAFC 207 at [40].
In paragraph 41, Ainslie-Wallace J stated as follows:
That is not to say that the power should not, as Lindon said, be exercised sparingly and rarely, but that it will be exercised where it is clear that there is no real question to be tried (see Lysaght Building Solutions Pty Ltd – supra).[35]
[35] Ibid at [41].
EVALUATION
Having carefully considered all of the available material referred to herein, I have formed the view that the father’s application should be dismissed pursuant to the rule in Rice v Asplund.
In all matters concerning parenting orders, the best interests of the children concerned is the paramount, but not the only, consideration.
It is open to the Court to reassess orders for children if there are changed circumstances. However, change is a necessary part of human life and does not invite endless revisiting of parenting orders. Reopening litigation on the basis of change alone may serve as an open invitation to endless litigation. There needs to be a substantial change in circumstances before the Court will permit a party to re-open parenting litigation. This must be even more so when applications are filed within a short time after final orders have been made by the Court, as is the case here.
As I am considering the matter at this preliminary stage, care must be taken to examine the available evidence and to determine whether at its highest the evidence demonstrates a sufficient change to warrant further litigation.
None of the matters raised by the father warrant a reopening of the litigation in this case, particularly noting the father’s unhappiness with the orders upon delivery of Judgment and his decision not to file an Appeal. The increase in the children’s ages, the father’s change of employment, the mother’s personal relationships and the COVID-19 pandemic are either normal life events, or in the case of the pandemic, have largely ameliorated. I am not satisfied that the matters raised by the father are so substantial as to re-open litigation and expose the children to further conflict between their parents.
Justice Harper acknowledged that it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. His Honour refers specifically in paragraph 262 of his Judgment to the children having “suffered through the conflict between their parents” and that:
It is in their best interests for them to be released from being the subject of proceedings. There is no clear outcome in this case which could create any certainty that future litigation can be avoided. But in light of my discussion of the evidence and the s 60CC considerations, I am satisfied the proposed orders are most likely to achieve the least worst outcome, and least likely to lead to further litigation.
Indeed, his Honour specifically referred to the Court’s understanding that:
…there is no outcome which could satisfy both parties; rather the Court can only do its best to bring about an outcome that is most consistent with the best interests of the children, irrespective of what either party may want. In his evidence about the allocation parental responsibility (above in [271]) the father said he believed in miracles, but, whatever else the Court may achieve, miracles are certainly beyond its jurisdiction.
At the hearing before me, the father emphasised his desire to have the children travel overseas, especially to Country BZ to meet his family. However, the topic of overseas travel was specifically referred to by his Honour in paragraph 317 to 327 of his Judgment.
The Court found at paragraph 320 of the Judgment that there were “good reasons why such travel should be prohibited” and on that basis, the Court declined to make orders permitting travel by either parent with the children unless both parties agree in writing. The Court directed that the children remain on the Family Law Watchlist.
The prohibition on overseas travel had nothing to do with COVID-19 or the “viability” of overseas travel as the father now submits. Rather, the Court was concerned at Trial that should the father travel with the children to Country BZ, he may “be tempted to stay”, noting that:
the father has demonstrated a less than scrupulous attitude to Court orders in the past, including orders of this Court and an ADVO.
For the reasons set out herein, the applications should be dismissed.
As I have determined that the rule in Rice v Asplund applies, I have not had to determine the issues of summary dismissal and/or whether or not there has been compliance with paragraphs 48 and 49 of the final orders as they relate to mediation or dispute resolution counselling prior to the issuing of further proceedings.
COSTS
The general rule as set out in section 117 of the Act prescribes that parties to proceedings under the Act bear their own costs. This general power is subject to the power of the Court to order costs and security for costs as set out in section 117(2) of the Act.
Section 117(2) of the Act states:
If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs whether by interlocutory order or otherwise as the Court considers just.[36]
[36] Family Law Act 1975 (Cth) s 117(2).
Section 117(2A) of the Act sets out the factors which the Court must consider in determining an order for costs. This section provides:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.[37]
[37] Ibid s 117(2A)(a)-(g).
The Court must assess and weigh all prescribed factors in a given case.[38]
[38] I & I (No.2) [1995] FamCA 80, (1995) FLC 92-625, 22 Fam LR 557 at 3.
It is not necessary that all factors need to be satisfied to justify an order for costs.[39]
[39] See PBF as Child Representative for AF (Legal Aid Commission of Tasmania);TRF & LKL [2005] FamCA 158; (2005) 33 Fam LR 123 at [41].
Furthermore, no one sub paragraph has priority over the others.[40]
[40] Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157 at [24].
On 8 June 2022, the mother filed a Costs Notice pursuant to Rule 12.06 of the Rules. The total costs up to 10 June 2022 were $9,164.70 and estimated costs of the threshold hearing said to be between $7,155.00 and $8,655.00.
The mother submits that if she is successful in her application, then the father should pay her costs fixed in the sum of $12,000.00 plus GST. In making the application for costs the mother refers to section 117(2A) of the Act and submits that:
(1)The father has been on notice since the mother filed her Response on 28 October 2021 that she sought to have the father’s application dismissed.
(2)The Court should give weight to the father’s conduct in bringing an application to re-open parenting proceedings whilst being in breach of the existing orders as set out in paragraphs 48 and 49 in relation to attending mediation counselling or family dispute resolution conference.
(3)That the father’s claim of impecuniosity is no bar to an order for costs being made.
(4)That the father foreshadows further litigation in the event of not succeeding with this application.
(5)That the father does not pay any Child Support for the subject children.
The father opposed any order being made for costs if he was unsuccessful with his application.
The father submits that he earns a modest income of $20,000.00 per annum and is in receipt of a Healthcare Card. The father submitted to the Court that “money isn’t important” and that he would pay any order for costs if so ordered by the Court “when I can pay”.
The father submitted that he earns $400.00 per week from which he is required to pay his rent and outgoings and that any order for costs would impact on his ability to care for the children.
At the time of hearing, the father was in Country BZ attending a family wedding. The father informed the Court that his overseas travel is funded by members of his family. Alarmingly, the father submitted that he would make applications “every six months” for overseas travel and that he had brought the application to the Court to try to “limit the conflict”. This latter submission appears at odds with the findings made by the Court at Trial as to the difficult relationship between the parents and the consequent impact on the children.
Finally, the father submitted that he understood the question of costs was a matter within the Court’s discretion.
There was no challenge to the father’s submissions regarding his limited income and financial circumstances.
There is also an agreed position that the mother has elected not to pursue an administrative assessment for the payment of Child Support by the father.
Contrary to the father’s submissions about his financial circumstances, there is ample Full Court authority that provides that impecuniosity can be no bar to making an order for costs where there are circumstances that otherwise justify an order being made.[41]
[41] See D & D (Costs)(No 2) (2010) FLC 93-435.
The father has been entirely unsuccessful in his application. The mother has unnecessarily incurred legal expenses. The father has been on notice since the mother’s Response was filed on 27 October 2021 that she sought an order for costs if the father’s application was dismissed.
I consider that it is an appropriate to exercise my discretion to make an order for costs as sought, save that I will extend the time for the father to pay those costs to within 90 days and not 28 days as sought by the mother.
CONCLUSION
For all of the above reasons, I make the orders as set out at the commencement of this Judgment.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 6 July 2022
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