VERBOOM & VERBOOM
[2019] FCCA 3941
•31 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VERBOOM & VERBOOM | [2019] FCCA 3941 |
| Catchwords: COSTS – Application for costs on an indemnity basis – where party seeking costs is in receipt of Legal Aid – where Application before the Court in the substantive proceedings is poorly framed and ill-conceived – where Applicant in the substantive proceedings has been wholly unsuccessful – where amount of costs sought is less than the indicative scale of costs in Schedule 1. |
| Legislation: Family Law Act 1975 (Cth), ss.45A, 60CA, 68P, 102NA, 102QB, 117 Federal Circuit Court Rules2001 (Cth), Div 1; Sch 1 |
| Cases cited: Rice & Asplund (1979) FLC 90-725 Taffa & Taffa [2012] FamCA 181 Penfold v Penfold [1980] HCA 4 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 Other sources: | ||
| Applicant: | MR VERBOOM | |
| Respondent: | MS VERBOOM |
| File Number: | CAC 2136 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 31 October 2019 |
| Date of Last Submission: | 31 October 2019 |
| Delivered at: | Canberra |
| Delivered on: | 31 October 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms J. Zankin of Infinity Legal |
| The Respondent appeared in person |
ORDERS
I dismiss all outstanding Applications and Responses.
Mr Verboom shall, within 28 days of this order, pay to Ms Verboom or the Legal Aid Commission ACT, the sum of $2,681.20 as a contribution to Ms Verboom’s costs of and incidental to these proceedings.
In the event the above sum is not paid within 28 days of today’s date then:
(a)Interest shall accrue upon that sum at the rate prescribed by the Federal Circuit Court Rules 2001 from time to time; and
(b)Ms Verboom or the Legal Aid Commission ACT shall be entitled to commence proceedings for recovery of that sum together with interest and cost of enforcement.
IT IS NOTED that publication of this judgment under the pseudonym Verboom & Verboom is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 2136 of 2016
| MR VERBOOM |
Applicant
And
| MS VERBOOM |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for two children:
B, born in 2012; and,
C, born in 2013.
The parties to the proceedings are the children’s parents - their Father, Mr Verboom, the Applicant, their Mother, Ms Verboom, as she has been known throughout the proceedings, the Respondent.
The proceedings commenced by an Application Initiating Proceedings filed on 16 May 2019.
The matter has not been the subject of significant appearances before the Court. The matter is listed today for interim hearing. As it transpires, Applications are pressed by the Respondent, Ms Verboom, as follows:
a)An application to determine and dismiss the proceedings on their merit, both interim and finally;
b)An application to terminate the proceedings by reference to what is often referred to as the “rule” in Rice & Asplund (1979) FLC 90-725; and
c)An application for summary dismissal.
I have articulated these as the bases upon which the Respondent seeks relief as it is clear and apparent from that which is eruditely put to the Court today that it is sought that the proceedings, in their totality, be terminated.
History of proceedings
This tranche of proceedings - not the first, I hasten to add - first came before the Court in Chambers on 5 June 2019. On that date, a number of procedural orders were made regarding access to material.
The matter was then before the Court on 12 June 2019. On that date, the Father appeared in person, as he does today. The Mother appeared with the assistance of a duty solicitor. The Mother is now legally represented and retains legal representation.
The proceedings were, on the basis that Ms Verboom had only recently been served and sought adjournment, adjourned to today for interim hearing.
Both parties appear today. As already indicated, Ms Verboom is self-represented.
Orders sought
The orders that are sought by Mr Verboom on an interim basis are as follows:
a)That the children be placed in a safe environment. One might infer from this plea for relief that it is suggested the children are not presently in a safe environment, living as they do, pursuant to orders previously made by this Court on 24 August 2017, with their Mother.
b)That the Father have sole parental responsibility of the children;
c)That the children live with the Father; and,
d)That the Mother undertake a parenting course and seek treatment. Mr Verboom has indicated that the treatment that is sought is with respect to suggested mental illness or disorder, although he fairly concedes that he is in no position to provide a diagnosis with respect to the Mother, either his own or that of anyone else.
The relief that is sought on a final basis is in remarkably similar, if not identical, terms, save and except that it is sought on a final basis that the children spend time and communicate with the Mother in accordance with further orders of the Court and after the Court has first had regard to the safety of the children.
Ms Verboom, by her Response, seeks dismissal of the proceedings and costs.
A more extensive history of proceedings cannot and need not be undertaken. Suffice to observe that the file for the matter resides within a large archive box. There are several folios of the file, of which the most recent tranche of proceedings occupies but one part.
It is clear that the earlier proceedings between these parties were commenced by an Application Initiating Proceedings filed on 22 December 2016, that is, nearly three years ago. The proceedings were initially before the Family Court of Australia and were, by Order made the day after filing, transferred to the Federal Circuit Court.
A number of further Applications in a Case and other materials were filed in the course of those proceedings before, ultimately, the orders referred to above, those of 21 August 2017, were made.
Those orders concluded the parenting aspect of the proceedings. The property adjustment aspect of the proceedings continued for some little time but was ultimately resolved by final orders.
Relevant evidence
As I have observed, Mr Verboom appears in person. Mr Verboom has indicated to the Court that he feels at a disadvantage as he is not legally represented and is not in a position to address legal issues with respect to the proceedings. I accept that he perceives that it is so.
There is no ability for the Court to provide representation to parties. If the matter were listed for final hearing, there would be the possibility of an order - indeed, it would seem irresistible and mandated - pursuant to section 102NA of the Family Law Act 1975 (Cth) to provide representation to any self-represented party.
However, the matter is not listed for final hearing, such as to invoke those provisions.
The best that can be done is to proceed with the matter on the basis of the parties with their present state of representation.
Mr Verboom has indicated that he has applied for Legal Aid and has been refused. Whether there is an appeal lodged or otherwise, I need not concern myself. There is no application for adjournment. The matter is before me today and the respective Applications of the parties are agitated. I must engage with and determine those Applications. To do otherwise might represent appellable error.
The totality of Mr Verboom’s evidence can be recited in fairly short time. The affidavit sworn and affirmed on 16 May 2019 leads evidence as follows:
I, Mr Verboom, born in 1991, was in relationship with Ms Verboom from 2011 till 2017. We have two children [as above]
The Notice of Risk contains further information, or allegation, as follows:
The children have been abused in the past in Ms Verboom’s care, and I have witnessed abuse while living with Ms Verboom and Ms K. I have seen Ms K hit and push and scream at both of my children on 2 March 2014.
That, of course, is prior to the determination of the prior proceedings when orders were made on a final basis. That evidence, if it had been led (and it would clearly have been available) would have been evidence taken into account.
There is an allegation that:
Drug and alcohol are in the children’s environment.
There is an allegation that:
B and C said over the last conversations I had with them, [the document being filed in May 2019, and thus in that period of time], that they are scared. C said she wants to leave the house, she does not want to be hurt, but she wants to live with me. B had his leg broken.
Finally, it is alleged:
Ms K and Mr L are crazy. They take drugs. Mr L is an alcoholic. Ms Verboom is an abusive Mother, screaming abuse at my children. The environment is not safe for children.
That is the evidence that is relied upon.
I make clear that the Mother’s material has not been read or considered at this point. That is consistent with relevant authorities with respect to summary dismissal, to which I will come in due course, although summary dismissal is not the path that I propose to take. That is not to suggest that it is not available, merely that there are preferable courses to determination of the proceedings. They are preferable both as a way to engage with the subject matter of the proceedings, and also different appellant regimes would apply thereto.
I propose to deal with each of the three potential grounds upon which Ms Verboom seeks termination of the proceedings in reverse order to those summarised above.
Summary dismissal
The principles with respect to summary dismissal are clearly and eruditely articulated by Le Poer Trench J in Taffa & Taffa,[1] Tree J in Hunter & Morrison (Summary Dismissal)[2] and Judge Kelly in Yim & Anor & Zieth.[3] To that end, I incorporate from the decision of Tree J, that set out by him at paragraph 4, wherein his Honour observes:
[1] [2012] FamCA 181.
[2] [2014] FamCA 199.
[3] [2018] FCCA 3797.
a)The power for summary relief 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 as 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 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 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 would ordinarily allow that party reframe its pleadings.
Le Poer Trench J similarly and eruditely set out the relevant case law, commencing at paragraph 32 of Taffa, and incorporating discussion of Webster & Lampard[4] in the High Court’s decisions in Lindon & The Commonwealth (No 2).[5]
[4] [1993] HCA 57.
[5] (1996) 136 ALR 251.
Judge Kelly eruditely summarises the position, commencing at paragraph 32 of Yim & Zeith.
I proceed on the interpretation and articulation of principles in each of those authorities.
Judge Kelly makes reference, not only to the Full Court of the Family Court authority but that from other civil jurisdictions, including the Full Court of the Federal Court and the High Court. The articulation is thus slightly different, although entirely consistent with that of Tree J, being:
a)The proceedings need not be hopeless or bound to fail (indeed, I pause to observe that this is the manner in which it is described by section 45A(3) of the Family Law Act (supra)). But if there are prospects of success, the power should not be invoked;
b)Summary dismissal must be justified when unanswerable or unanswered evidence of fact is pleaded;
c)The power should be used with caution, particularly if complex questions of facts or law are involved.
In this case, it might well be argued, as it could be in any parenting case, that there are complex issues of fact. Certainly, the primary matters agitated by Mr Verboom relate to:
a)Allegations of alcohol abuse by, if not the Mother, maternal family members.
b)Alleged violence visited upon the children, although it would appear from this evidence that most, if not all of those allegations were before to the Court prior to the determination by Judge Hughes.
c)Allegations as to the Mother’s mental health. They are articulated by Mr Verboom as the Mother being “a crazy capitalist”, whatever that might mean. It is suggested by Mr Verboom that the Mother suffers some serious disorder of mood.
By reference to the above principles and Mr Verboom’s frugal evidence, I am satisfied that summary dismissal would be available. The case on the evidence that is led, accepting that all evidence that might be placed before the Court for a final hearing is not presently led, would certainly be sufficient, if nothing else, to summarily dismiss the Interim Application. However, there are other bases to proceed upon, as I have indicated, and thus I will turn to those.
Determination on merit
I am not satisfied that it would be appropriate for me to determine, on merit, anything but the Interim Application. The matter is listed for interim hearing only. There would be an arguable case that Mr Verboom is denied due process if the Application were to proceed to finality today, with a merits determination of his final plea for relief.
Material that is filed for the purpose of an interim hearing is not necessarily all material that would be relied upon at hearing. However, for the purposes of the Interim Application, and noting that the totality of evidence led is set out above, the Application must fail.
In relation to the Final Application, however, I am not satisfied, as already made clear, that this course would be an appropriate course.
That does, however, leave the third and final ground, being the application of what has been be referred to as the rule or the principles arising from Rice & Asplund.
Rice & Asplund
The predominant articulation of the rule in Rice & Asplund, following the 2006 amendments to the Family Law Act 1975, is contained in Justice Warnick’s decision, sitting as a single judge hearing an appeal from a Federal Magistrate, (as they then were), in SPS & PLS.[6] His Honour’s judgment commences at paragraph 1 with the following:
The “rule” in In the Marriage of Rice and Asplund [1978] FamCA 84; (1979) FLC 90-725 - (at least, in one of its shorter formulations) that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
[6] (2008) FLC 93-363.
His Honour then, in due course, after considering the specific facts and circumstances of the case before him, turned to a more detailed yet erudite articulation of what had previously espoused by the Full Court in Rice & Asplund. What is fundamentally clear from his Honour’s discussion is the reality that the “rule” is but an articulation of the best interest principle that the interests of children are not to be served by repeated litigation between parties.
I incorporate herein his Honour’s discussion of the rule as set out therein, particularly commencing at paragraph 45. Therein, his Honour canvassed myriad decision that had previously applied what is referred to, by his Honour, as the rule in Rice & Asplund:
(a) The rule
45.Discussion of the rule has not always used consistent terminology. In particular the term “threshold” has sometimes been used in a temporal sense, to indicate something done at the beginning of a hearing as opposed to at the end and, at other times, the term has been applied to consideration of the rule (irrespective of when in a trial that was given) ahead of consideration of (or as the initial application of) other relevant or potentially relevant principles.
46.I will use the term “threshold” to mean, “the first question to be determined” and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered. I will refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a “preliminary matter”.
47.The rule is long established - nearly thirty years now in this jurisdiction – and was alive well before that in similar jurisdictions, and so, one might think, is in little need of discussion. But sometimes familiarity and repetitive usage may abrade the subtleties of a principle or expose those not originally appreciated.
48.In my view, reflection on the rule shows that:
·(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
·(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
·(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
·(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
·(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
·(vi) “Shorthand” statements of the rule may contribute to its misapplication.
·(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
49.I support these observations as follows.
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
50.Rice and Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment, Evatt CJ said of the position of a court confronted with an application to change an earlier order that (at 78,905):
... 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.
51.In the remainder of the paragraph immediately following this passage, Evatt CJ said that the threshold question is not necessarily one for a preliminary determination. Yet in my view, her Honour had formulated the rule as one to be applied as a preliminary matter. As seen, she said that the court should not lightly entertain an application to reverse an earlier custody order.
52.In Bennett the Full Court, comprising Nicholson CJ, Simpson and Finn JJ, seems also to have thought that the rule in Rice and Asplund was primarily one that would be applied as a preliminary matter. That court expressed the view that while it was a matter of discretion as to whether a judge embarked upon a full hearing of a matter or determined the threshold question as to a change in circumstances, that in no way derogated from the general principle expressed in Rice and Asplund “that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances.” [emphasis added]
53.The original formulation does not well describe the position of a court effectively considering what weight to give to a previous order at the end of a full hearing of an application to alter that order. Then, as a matter of terminology alone, the rule would be at least directed to the question, not of whether to entertain an application, but whether to reverse (or alter) an earlier order.
54.This difference may seem unimportant, but it is not.
55.The ends served by the rule will vary according to whether it is applied at the outset of, or at the end of, a hearing.
56.As seen above, in Rice and Asplund, Evatt CJ recognised that a purpose of the rule was to discourage “endless litigation”. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.
57.In In the Marriage of McEnearney [1980] FamCA 43; (1980) FLC 90-866, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):
...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. (emphasis added)
58.Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
59.If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.
60.If the rule is not applied until the end of a full hearing, they cannot; the parties will have litigated in a full hearing; likely that very situation will have impacted on the children, who however may have been more directly involved, for example, in interviews for a Report; public resources will have been expended.
61.In my view, a likely and important consequence of a diminution in the ends to be served by a rule is a diminution in the weight it should carry, among the other principles pertinent to an overall result. This observation is reinforced by consideration of the nature of the hearing that takes place if the rule is not applied as a preliminary matter.
62.As mentioned earlier, in Rice and Asplund Evatt CJ said that the threshold question is not necessarily one for application as a preliminary matter. Her Honour added at 78,905 – 78,906:
... but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. ...
63.I think this passage raises two awkward concepts. As already stated, at the end of the hearing, a judge will not be enquiring whether there are “circumstances which require the court to consider afresh how the welfare of the children should best be served”. That enquiry will have already been conducted.
64.Secondly, in strict logic, if a judge is unable to determine on the papers if a change of circumstances, sufficient to embark on a fresh hearing of a parenting issue exists, then what the judge should embark upon is a hearing directed to that question, not one directed to “how the welfare of the children should best be served”.
65.However, ellipsis in logic or not, subsequent authority has clearly reiterated that if the rule is not applied as a preliminary matter, then the hearing that follows is a full hearing of a “custody” dispute.
66.In the Marriage of F and N [1987] FamCA 40; (1987) FLC 91-813 Nygh J, with whom Evatt CJ and Burton J agreed, said at 76,137:
Rice and Asplund in fact makes the point that this court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.
Generally speaking, a court should as a matter of practice not assume such jurisdiction unless there is a change of circumstances that has occurred since the last determination. As I have pointed out earlier in this case, such a change of circumstances had in fact occurred. Rice and Asplund, in my view, also makes it clear that once the Court assumes jurisdiction the normal rules applicable to custodial decisions apply. That is to say, the earlier decision does not assume any particular onus upon the person who seeks a change from the existing situation to show that this is or is not justified. The Court must consider the matter afresh in the light of what it considers to be in the best interest of the child.
67.In Bennett, the trial Judge had embarked upon a fulsome hearing of a custody issue and the Full Court expressed no disapproval of that course.
68.In In the Marriage of D and Y (1995) FLC 92-581 the Full Court, referring to Bennett’s case, clearly regarded the choice for a court, where departure from a previous order was sought, as between determination of the threshold question as a preliminary matter or a “full hearing of a custody dispute”.
69.Though I refer to a “leap in logic” there may be good reason for it. In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court. The nature of the hearing that follows if the Rice and Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
70.But the concern is that to proceed in the circumstances under discussion to a “full hearing of a custody dispute” may cause the threshold question to fade completely away. This observation may explain what the Full Court said in Bennett (at 78,262 - 78,263):
In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion on the basis that no change in circumstances have been shown.
...it seems to be almost impossible to argue that if a trial Judge has concluded that, in the interests of a child, there should be a change in custody, such a decision should be set aside upon the basis that there has been no sufficient change of circumstances. ...
71.This statement seems equivalent to saying that the rule in Rice and Asplund need not be applied.
72.I would put the position a little differently. While I have said that the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
73.There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
74.In summary:
·The rule in Rice and Asplund is generally expressed – as a rule to be applied as a preliminary matter;
·If applied as a preliminary matter it may achieve all its purposes; and
·If applied at the end of a full hearing of parenting issues, the rule cannot achieve all its ends, but can achieve some and ought still receive consideration. However, its force may be diminished.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with on the merits.75.As seen from the passage from Bennett earlier quoted, the Court there said:
In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter.
76.This implies that had the threshold question been answered at a preliminary stage and the application dismissed, it would not have been dealt with “on the merits”. I think that implication should be avoided.
77.An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
78.Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole [1987] FamCA 21; (1987) FLC 91-856 at 76,467:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the court. ...
79.Again, in In the Marriage of F and N (supra), Nygh J said at 76,136:
Indeed it is fair to say, as I have said on several occasions, that basically in custodial matters there is only one rule, and that is that the welfare of the child is the paramount consideration. Everything else is but a reflection of that rule.
80.And in McEnearney (supra) Nygh J further said at 75,499:
One comes back to the fundamental principle that the interests of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court to soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court.
81.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 in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(v) The application of the rule is closely connected with the nature of and degree of, change sought to the earlier order.
82.This proposition lay behind what Evatt CJ said in In the Marriage of Zabaneh [1986] FamCA 18; (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.
83.Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
(vi) “Shorthand” statements of the rule may contribute to misapplication.
84.Although I do not suggest that, when judgments of the court in which the rule is discussed are read in full, the rule is in any case inaccurately or even insufficiently expressed, sometimes “shorthand” descriptions of the rule are used and are then taken up by others in later cases. Some phrases used seem to better direct attention to the essential question than others. For example, the phrase used by Nygh J in McEnearney (supra), that a court should discourage a parent from coming back to court where there “is really no startling new circumstance” focuses attention on the character of the circumstance itself. Similarly, terms such as “a substantial change in circumstance since the making of an existing order”, as used by the Full Court in D and Y (supra), may tend to focus attention on the character of a particular event or events. The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
It was indicated, perhaps in combination with that discussed with respect to summary dismissal, that the “rule” might be applied as a threshold issue in certain but limited cases. The “rule” would be a best interest determination applicable at any point in proceedings.
By reference to that which is discussed by his Honour, I am satisfied on the evidence that is presently available that there has not been a change in circumstances that would warrant a reopening of these proceedings. I will articulate the reasons for that in greater detail.
The evidence that is available, (even accepting that what is led by Mr Verboom is without the benefit or assistance of legal representation or advice, and without having intended to place before the Court all evidence that might be relied upon at a final hearing), could not suggest that there is a serious issue to try. It could not suggest that there has been a change. The Notice of risk Articulates matters which are either directly expressed to be or inferentially are, save and except the suggested conversations with the children in May 2019, predating the orders that were by her Honour Judge Hughes.
The previous orders provide for:
a)Dismissal of Mr Verboom’s then Application;
b)Investment of sole parental responsibility in Ms Verboom;
c)The children to live with Ms Verboom; and,
d)Time between Mr Verboom on a supervised basis and as agreed between the parents, (although it would appear that there has been no such agreement since the orders were made, and thus no time has occurred).
What is clear and apparent from the nature of the orders that her Honour made is that serious protective issues must have been raised. There is no other basis upon which her Honour would, (without having had the opportunity to consider any reasons delivered by her Honour), have made such orders.
At the time that the orders were made, these children were two years younger than at present. B was five years of age and C was but four years of age, or not quite.
The matters that are raised by Mr Verboom, being largely historical, could not support the establishment of any change in circumstances that warrants a reopening.
It might be inferred that the absence of any supervised time because of an absence of agreement would potentially represent a change by and of itself, but there is no evidence to suggest that there has been any request to invoke that arrangement. Thus, I could not draw that inference.
The highest that the evidence could come is a suggestion that during a phone call, that one of the children had said that she wished to leave the house. Even accepting that evidence on its face as true, and whilst potentially causing some basis for concern that the child might be expressing such a view, I am not satisfied that it would warrant the further and greater risk to these children of exposing them and their parents to another tranche of litigation.
There has not been extensive litigation in relation to parenting. The last set of proceedings were on foot for approximately nine months before their conclusion. I cannot ignore, however, the reality that this matter, if it were to proceed - and it is not the basis upon which any determination is made, but must be observed as it has some relevance to assessing the level of risk that a further reopening of litigation would represent - then this tranche of litigation could not be heard and determined before, at its earliest, 14 months hence. It would involve the children in family consultancy interventions - if not further interventions outside of the Court, either through community-based services or a part 15 report. It would require the appointment of an Independent Children’s Lawyer, and thus the children’s engagement with that lawyer.
I am satisfied that in discussing the rule in Rice & Asplund and its role in the determination that I make today, that a number of the matters raised in the summary dismissal authorities are relevant. I make clear, however, that the determination of this matter by reference to the rule or principle in Rice & Asplund is not a summary dismissal issue. It is a merits determination with respect to the best interests of the children.
In that regard, I am conscious of that which fell from Forrest J in Gordon & Gordon [2015] FamCA 616, and I incorporate paragraphs 3 to 5 thereof.
3.Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
4.Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
5.In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others
If the child’s best interests are to be genuinely treated as paramount, as section 60CA of the Family Law Act (supra) requires, and as the International Convention on the Rights of the Child[7] requires, then those interests must inform all decisions.
[7] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
The Court is faced today with an Application which, on its face, does not raise any fresh judiciable controversy, with the possible exception of one alleged statement by a child on the telephone. It is quite clear from the body language and presentation, let alone the language used within Mr Verboom’s material, that there is nothing that could be described as trust or goodwill between these parents. Mr Verboom alleges that not only the Mother, but her extended family are a risk to the children - matters which may well have been, and on the basis of that related in the Notice of Risk, must have been canvassed in the earlier proceedings.
These children to then be exposed to all of those interventions, that delay, and the inevitability on the evidence presently alluded to, assuming that even that which is filed for final hearing would not dramatically build thereupon, would be an abuse of these children. They do not need that intervention in their lives, when the probability of any outcome different to the orders presently in force is extremely remote.
It is on that basis that I am satisfied that the proceedings should be, to adopt the language of Kirby J in the authorities discussed above, albeit in the context of summary dismissal, “terminated” at this stage. It is not in the best interests of these children to be exposed to another tranche of litigation between clearly hostile, distrusting and unsupportive parents.
Whether that hostility, distrust and lack of support is founded in past-lived experience, each of the other, or otherwise for no apparent purpose, it is improbable, at the very best, that an order would be made as sought by Mr Verboom or any order that is different to the orders presently in force.
The best interests of these children are paramount. Nothing contained within Mr Verboom’s material could possibly raise a serious judiciable controversy or factual dispute regarding them.
In relation to the issue of Rice & Asplund determination, I am permitted to have regard to the Mother’s evidence. Indeed, because it is a best interest determination by reference to the evidence available to the Court at the point of determination, I am compelled to do so.
In briefly considering that material - even scant regard to that material - the issues that are raised and the comments made above are well supported.
There is, on Ms Verboom’s evidence - again, accepting it on the interlocutory standard as more probably more correct than not - a substantial history of family violence is alleged between the parties. There have been family violence orders.
There is a current family violence order in force - a copy of which is annexed to Ms Verboom’s material, it having been extended for two years from 16 May 2019. The order would appear, on its face, to have been made by consent and without admissions, but nothing turns upon that issue. The order is in place. That is all the Court need know.
The order is extensive. The order precludes Mr Verboom attending at the children’s home, the children’s school, being within 100 metres of the protected persons, (confined to the Mother, it must be observed, but extending to include persons with whom the Mother has a genuine domestic relationship, and thus arguably the children as well).
Thus, there are issues by reference to section 68P of the Family Law Act (supra) that the very relief that is sought by Mr Verboom, noting that even with the chronic and extensive delays that would face this matter in its determination, (the final determination would likely be before the expiration of that order), in granting the relief sought.
The relief sought by the Applicant would be entirely inconsistent with what has already been included within a family violence order. The Court has a serious obligation to not make orders that are inconsistent without full and good reason. Having regard to Ms Verboom’s evidence at this point, and having regard to the merits of the case, it is all the more improbable that anything could be achieved by the proceedings other than further disadvantage to these children.
Since the proceedings were last before this Court, the parties have had fairly unremitting litigation in other Courts and tribunals, including family violence proceedings, involvement with police, it would seem defamation proceedings before an administrative tribunal, and possibly other actions.
In all of those circumstances, the concern that would be raised is that the disadvantage and negative impact upon these children of yet another forum in which these issues could be ventilated between the parties when the evidence that is suggested to support and warrant that reopening is, at its best, scant, unsatisfactory and improbable in obtaining any order different to those which already exists, outweighs any benefit.
In all of those circumstances, accordingly, orders are made dismissing the application.
Costs
At the conclusion of the above determination, an Application for Costs is pressed by Ms Verboom.
The Application is contained within her Response, and accordingly, I am satisfied that Mr Verboom has notice of intention to make such an Application.
The costs that are sought, noting that Ms Verboom is legally aided, are in the sum of $2,681.20. Less there be any controversy that it might be suggested that the Application is thus sought and pressed on an indemnity basis, thus invoking the principles discussed in Prantage & Prantage [2013] FamCAFC 105, I make clear that:
a)All costs on a party/party basis would appear to be sought. The quantum is purely by reference to that, in fact, expended by the Commission. It is entirely appropriate to confine the quantum of costs sought to that which is actually expended. To do otherwise would be inappropriate.
b)If costs were to be awarded, the quantum of costs by reference to Division 21 of the Federal Circuit Court Rules 2001 (Cth) and Schedule 1 thereto, provides an indicative scale of events-based costing which would dramatically exceed that which is, in fact, sought. Indeed, the item that would apply without consideration of Court attendance is item 2, “opposing an Application which includes interim orders, up to the first Court date” - $2802. There are additional amounts by reference to items 13, 12, 14 and 15 that would also apply to exceed the amount that is sought.
In dealing with any Application for Costs, the Court is required to follow that which is set out in section 117 of the Family Law Act (supra).
Section 117(1), creates, as the High Court discussed in Penfold & Penfold,[8] the “general rule” that each party should pay his or her own costs. That is, subject to the discretion to award costs as reserved by subsection (2), that the Court may, if the dual tests of justice and justification, (see Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812), are met.
[8] [1980] HCA 4.
Subsection (2A) sets out a list of prescriptive but non-exhaustive considerations.
The balance of factors in subsections (3), (4), (4A), (5) and (6) are not relevant, dealing as they do with applications with by or involving Independent Children’s Lawyers or Child Welfare Agencies.
Mr Verboom has been afforded the opportunity to make submissions with respect of costs. He has declined to do so, save and except for tendering a document exhibit A, comprising a post-it note upon which is written the email address of the Eastern Appeals Registrar. Thus, I can take it that Mr Verboom intends to signal his desire to appeal. That is, of course, his right.
In relation to costs and dealing with each of the subsection (2A) factors, the following can be observed.
Financial circumstances of the parties
Nothing is known.
Whether any party is in receipt of grant of Legal Aid
Ms Verboom is.
The conduct of the parties to the proceedings
There is nothing to suggest that Mr Verboom has, through act or omission, increased or inflated the costs in relation to the proceedings. The factor that might arise, perhaps in combination with subsection (e), is that the Application was poorly framed and ill-conceived. It is not, however, of itself justification.
Whether the proceedings were necessitated by failure to comply with an order
Not relevant.
Whether a party has been wholly unsuccessful
As discussed by the Full Court, and to that extent, as the Full Court has made clear,[9] what might be considered (if necessary utilising subsection (g)) is both relative success and lack of success of each party.
[9] See for example Browne & Green [2002] FamCA 791.
Success is a difficult term with respect to parenting proceedings. When the children’s best interests are paramount, it is difficult to understand what might be meant by success or absence thereof. The children will, as a consequence of the circumstances in which they find themselves, let alone this litigation or anything which flows from its termination, be disadvantaged.
Certainly, it would be fair, if one were to adopt a simplistic definition that failing to obtain relief sought is “unsuccessful”, that Mr Verboom has been wholly successful. That is because his application is poorly framed and ill advised. It should, perhaps, never have been made or certainly not in the context in which it has come before the Court.
That lack of success is, I am satisfied, a justification for an order for costs.
Whether it is just is difficult to properly assess as there is nothing known of the financial circumstances of the parties. However, I am satisfied that it would be, at the very least, unjust for an order not to be made. The Legal Aid Commission has borne the cost of resisting the Application and Ms Verboom has been wholly successful in obtaining which she sought.
Offers in writing
Not relevant.
Other matters that are relevant
There is no Application before the Court pursuant to section 102QB of the Family Law Act (supra). It is, perhaps, if nothing else, a clear signal of the ill-advised nature of the Application if an order for costs would be made. I make clear, however, that whilst that is observed, it is not part of the rationale of the order that I propose to make.
Being satisfied that it is both justified and just to make an order for costs, I must then have regard to the quantum.
As already observed, Division 21 of the Federal Circuit Court Rules 2001 provides an indicative scale of costs in Schedule 1. The costs that are sought are less than that which would be provided by the schedule. Accordingly, I am satisfied that the quantum of costs sought is appropriate, and further orders are made.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 8 December 2020
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