FEDERAL CIRCUIT COURT OF AUSTRALIA
BURTON & HOPE	[2015] FCCA 1994	

Catchwords: 
FAMILY LAW – Children – parenting orders – application to vary final parenting orders – where respondent seeks summary dismissal of application – “Rice v Asplund” principle considered.	

Legislation:
Family Law Act 1975 (Cth), s.60CA
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001, r.13.10	

Cases cited:
Australian and International Pilots Association v Qantas Airways Limited [2013] FWCFB 317
Carriel & Lendrum [2013] FCCA 284
Carriel & Lendrum [2015] FamCAFC 43
Choate & Raymond [2015] FCCA 1596
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington [2008] FamCAFC 150; (2008) 29 Fam LR 654; FLC 93-283; 220 FLR 300
Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 930363
SPS and PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363	

Applicant:	MR BURTON	

Respondent:	MS HOPE	

File Number:	SYC 3313 of 2011	

Judgment of:	Judge Scarlett	

Hearing date:	20 July 2015	

Date of Last Submission:	20 July 2015	

Delivered at:	Sydney	

Delivered on:	20 July 2015	
REPRESENTATION
Counsel for the Applicant:	Mr Ford	

Counsel for the Respondent:	Ms Winfield	

Solicitors for the Respondent:	Eleanor Murphy & Co	

ORDERS
(1)	The Interim Response filed on 15 April 2015 is dismissed.
(2)	The Respondent is to file and serve an Amended Response and an affidavit stating the facts upon which she seeks to rely within 28 days.
(3)	As provided by section 11F of the Family Law Act 1975 the parties are to attend a Child Dispute Conference at 2:00pm on 26 August 2015 and in accordance with section 11C of the Act the Conference is to be reportable.
(4)	The Application is adjourned to Tuesday 1 September 2015 for further mention at 10:00am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney	
SYC 3313 of 2011
MR BURTON	
Applicant

And

MS HOPE	
Respondent

REASONS FOR JUDGMENT
1.	The Application before the Court is on an application for summary dismissal of the Applicant’s case.  The Respondent Mother in her Interim response filed on 15th April 2015 seeks a parenting order which is of some relevance, but specifically seeks that the Applicant’s interim application be otherwise summarily dismissed pursuant to Rice v Asplund.  There is also an application for costs, interestingly enough, sought on an indemnity basis.
2.	The Applicant is an international airline pilot, a long-haul pilot, to use the vernacular.  He was a short-haul pilot.  He was flying (omitted) aircraft for Qantas as a first officer.  He is now a second officer flying (omitted) aircraft, also for Qantas.  The reason for this change is twofold.  Not only is it as a result of a decision of the Full Bench of the Fair Work Commission in Australian International Pilots Association v Qantas Airways Limited, but, also, for the operational decision within his employer to retire the particular type of aircraft which he was required to fly, namely, the (omitted).
3.	It is the Applicant’s case that as a result of these changes in his workplace his roster has changed significantly and it appears to have changed in two significant regards, and I am simplifying this and setting out the Applicant’s case at its highest, which I must do in a summary dismissal application.  
4.	It is his assertion that he was rostered as a short-haul pilot on rosters which had, if you like, 28-day band, which would require him to be away from home for certain periods of time.  As a long-haul pilot on international flights he has a roster on a 56-day band, twice the length of time, and the very nature of the flights on which he is involved in these very large international aircraft will require him to be away from home for longer periods of time flying, as he does, to distant destinations such as (country omitted), (country omitted), (country omitted) or (country omitted).  So these are the changes that he claims in his work arrangements which he says affect the arrangements in the consent orders which were made before me on 20th September 2011.
5.	Now, the Respondent Mother seeks summary dismissal on the basis that he has not proved that there is any change and that, therefore, there is no case, applying the principle of Rice v Asplund.  Now, as I have said, in a summary dismissal application it is the Respondent who has the task of persuading the Court that the Applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.  
6.	The power of the Court comes from section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and it derives from the Court’s widespread jurisdiction, not only in Family Law, but from the other side of the Court’s jurisdiction, its federal jurisdiction, because s. 17A has its counterpart not under the Family Law Act, but under the Act that gives the Federal Court its powers, the Federal Court of Australia Act 1976 (Cth), namely s. 31A..
7.	The specific rule relating to disposal by summary dismissal is rule 13.10.  That says:
	 The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:  
	(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim;  or 
	(b) the proceeding or claim for relief is frivolous or vexatious;  or 
	(c) the proceeding or claim for relief is an abuse of the process of the Court.
8.	Now, quite properly, the Respondent has not submitted that the proceeding or claim for relief is frivolous or vexatious or that it is an abuse of the process of the Court.  What is required to be established is that the Applicant in this case has no reasonable prospect of successfully prosecuting the proceeding or claim.  It does not need to be shown that the Applicant’s case is hopeless or doomed to fail;  what has to be shown is that there is no reasonable prospect of successfully prosecuting the proceeding or claim.
9.	Now, if one looks at Rice v Asplund cases, which feature prominently in this case, I examined this very procedural issue in the case of Carriel & Lendrum, which recently was the subject of an appeal decision by the Full Court of the Family Court.  The appeal against the decision of this Court in Carriel & Lendrum was dismissed.  In Carriel & Lendrum I did decline to accede to the application for a change in orders by applying the rule in Rice v Asplund, as I have recently done in another decision of Choate & Raymond.
10.	What was argued by senior counsel in Carriel v Lendrum was whether summary dismissal is the appropriate procedure and I was referred then, as I have been referred today, to the decision of Warnick J in SBS and PLS where his Honour held, at [81]:  
Thus, in my view, when the threshold question described in Rice v 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 circumstances shown to justify embarking on a hearing.  Though sometimes unstated, the underlying conclusion will, or ought to 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 apply the application to continue.
11.	And, of course, in paragraph [83] his Honour went on to say:
Accordingly, the rule may not impede hearing an application for a small alteration which may require only a shortened narrow inquiry, but may properly prevent a hearing in respect of more far-reaching changes.  
12.	It will be recalled, of course, in Rice v Asplund itself, the unsuccessful party had applied to re-open parenting proceedings, in effect, to change the child’s residence.  It was certainly a far-reaching proposition.  That was also the case in the recent decision I handed down in Choate & Raymond.
13.	The changes sought in Carriel & Lendrum were of some significance and involved a variation of orders made by a Federal Magistrate less than two years before, which, again, were very far-reaching.  What has been submitted is that the orders sought to be varied relate to the timing of spend-time arrangements as set out in orders 5.5 and 5.6 of the consent orders made on 20th September 2011.  They relate to alternate weekend times and other nights during the week.
14.	If it appears that on the Father’s substantive application, taken at its highest, he does not have an arguable case, then, in my view, it is open for the Court to be satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.  I am not of that view.  I am of the view that the argument raised by the Applicant Father is an arguable case per se.  That is not to be taken as meaning that the Applicant has a winnable case or an unlosable case.  An arguable case is just that.  It is a case that is worthy of the time of the Court and is not a case that has no reasonable prospect of success.
15.	It is quite common in this and many other jurisdictions for parties to lose arguable cases.  In fact, usually, each party has an arguable case;  not all of them can be successful.  In the long run, with a summary dismissal application it falls to the Respondent to satisfy the Court that there is no reasonable prospect of success.  As I said, I am not of that view.  Accordingly, the Interim Response filed on 15th April 2015 is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:  

Date:  23 July 2015