A and L
[2005] FMCAfam 97
•18 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & L | [2005] FMCAfam 97 |
| FAMILY LAW – Children – contact – mother relocated with children out of Sydney with fathers consent – father sought return of children to Sydney – withdrawal of father’s Application on second day of hearing – father’s Application held to be frivolous and vexatious. |
| Family Law Act 1975 (Cth), ss.68F; 118C |
| Applicant: | SA |
| Respondent: | KL |
| File Number: | PAM 994 of 2004 |
| Judgment of: | Emmett FM |
| Hearing dates: | 17 & 18 February 2005 |
| Date of Last Submission: | 18 February 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 18 February 2005 |
REPRESENTATION
| The Applicant in person |
| Counsel for the Respondent: | Mr Levy |
| Solicitors for the Respondent: | Dignan & Hanrahan |
| Counsel for the Child Representative: | Mr Clark |
| Child Representative: | Watts McCray Lawyers |
ORDERS
Orders be made in accordance with orders 1-9 contained in the document headed “Minutes of Order proposed by Separate Representative” attached and marked “A” and initialled and dated by me.
The Applicant Father is not to consume alcohol at least 12 hours before the commencement of contact with the Children until the conclusion of contact when the Children are delivered back into the Respondent Mother’s care.
The Applicant Father is restrained from discussing the Court proceedings or the Family Report with any of the Children.
The Applicant Father is restrained from denigrating the Respondent Mother in the presence or hearing of any of the Children.
The Court having found that the proceedings are frivolous and vexatious, pursuant to s.118(1)(c) of the Family Law Act 1975 the Applicant Father is hereby restrained from instituting proceedings under the Family Law Act 1975 without leave of a Court having jurisdiction under the Family Law Act 1975.
The Application is otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 994 of 2004
| SA |
Applicant
And
| KL |
Respondent
REASONS FOR JUDGMENT
The father’s application
In these proceedings the Applicant Father applies for Orders pursuant to an Amended Application filed 26 November 2003 seeking contact with 3 children of the marriage of the parties, namely J, 12, and twins R and S, 9 (“the Children”).
Subsequent to the filing of that Application, the Respondent Mother moved in April 2004 to St George's Basin where she has remained with the Children. The Applicant Father did not oppose the Respondent Mother’s relocation. On 25 August 2004 interim Orders were made by consent providing for contact with the Children with changeovers to occur at the Centacare Children's Service at Nowra.
At the commencement of this hearing on 17 February 2005, the Applicant Father sought an Order that the Respondent Mother return with the Children from Nowra to Sydney.
The Applicant Father further sought an Order that he have contact with the Children from Friday to Tuesday every second weekend, for half of each school holiday period, and alternate Christmases, with changeovers to be at McDonalds Campbelltown or the police station at Campbelltown.
The matter was set down for hearing for 2 days.
Shortly before lunch on day 1 of the hearing, the Applicant Father said, whilst being cross-examined, that he wished to withdraw from the proceeding. He said he did not wish to pursue his Application as he was of the view that it was unlikely the Court would order that the Respondent Mother and Children return to Sydney and that he was under no circumstances going to travel to and from Nowra for contact because of the expense involved and the time it otherwise took out of his life.
The Applicant Father frankly conceded in cross-examination that an Order that the Children now return to Sydney is not in their best interests. All 3 children presently attend St George's Basin Public School where the evidence is they are well settled, enjoy their school life and have friends.
Arrangements were made over the luncheon adjournment for the Applicant Father to consider his position and, if possible, to obtain some advice from the Legal Aid Commission if possible about the consequences of withdrawing from the proceedings.
I informed the Applicant Father that if he withdrew, the matter was likely to be determined on the evidence before the Court and Orders of a nature sought by the Respondent mother in her Amended Response were likely to be made. Those orders included contact for one weekend a month, one week of each school holidays other than the Christmas school holiday period during which there would be two periods of one week each and alternate Christmases, with changeover occurring at Centacare Nowra.
The Applicant Father returned after the luncheon adjournment, having received some advice from the Legal Aid Commission, and sought to pursue his Application without any further amendment including pursuing an Order that the Respondent Mother and the Children return to Sydney.
Submissions of the children’s representative
At the conclusion of the evidence the Children’s Representative made submissions that the Applicant Father was self-absorbed. He submitted that either the Applicant Father was so completely self-centred in seeking his Orders or the Applicant Father had reached a stage of such petulance that he was unable to consider any Order not sought by him.
The Child Representative submitted that the evidence is that the Applicant Father pays only $10 a fortnight child support to the Respondent Mother and yet draws $100 a fortnight to assist in looking after Children that he rarely sees, knowing that this is money that would otherwise be available to the Respondent Mother to assist in the costs of looking after his Children.
The Children’s Representative further submitted that the Applicant Father wished to have contact with the Children only on his own terms, despite knowing that the Children would like to see him, and were disappointed when he failed to keep contact arrangements.
Further, the Child Representative submitted that the Applicant Father had a limited insight into the needs of his Children, and was more concerned about feeling sorry for himself to such a degree that he now says he simply doesn't care what Orders are made.
I note that the Applicant Father failed to have contact between 21 and 28 January 2005, and for whatever reason has made no attempt to contact and explain to the Children why he was unable to keep this arrangement.
The Child Representative further addressed the Court in relation to the s.68F factors, particularly in referring to the difficulty of the Respondent Mother, both from a practical and financial aspect, of travelling any great distance with the Children to facilitate contact with their father, on the basis that she has a 2 month old baby and limited financial resources.
The Child Representative further submitted that both parents should be compelled to complete a Keeping Contact course run by Unifam, and that the 3 hour introductory course completed by the Applicant Father was otherwise inadequate for the counselling needs he plainly required.
Applicant father’s withdrawal of the application
The Applicant Father on day 2 of the hearing sought to withdraw his Application for any contact whatsoever, stating that he had been frustrated for 7 to 8 years, that solicitors do not do their job, that the Child Representatives do not do their job, that the system has let him down and that in all the circumstances it is better that he not have contact.
The Applicant Father indicated that his withdrawal of his Application was also based on the indication that travel by him for contact would be required.
I then indicated to the Applicant Father that in the event that his Application was withdrawn, that the Orders proposed by the Child Representative were likely to be made, which would provide him some few months to reconsider whether or not he was going to seek and maintain contact, but that if contact was to occur, it needed to be consistent and regular for the sake of the Children, and that in the event he failed to maintain regularity, that he would lose the opportunity for contact in time without further order of the Court.
The Respondent Mother submitted through her Counsel that she would agree to the Orders proposed by the Child Representative, but sought 3 further Orders:
a)That the Applicant Father not consume alcohol 12 hours before or during contact;
b)That the Applicant Father be restrained from discussing the Court proceedings or the Family Report with the Children; and
c)That the Applicant Father be restrained from denigrating the Respondent Mother in the presence or hearing of the Children.
Respondent mother’s application for s.118C orders on grounds that the applicant father’s proceedings are frivolous and vexatious
The Respondent Mother further sought an Order pursuant to s.118C of the Family Law Act, that the Applicant Father not be allowed to institute any further proceedings relating to the Children without leave of the Court on the basis that his withdrawal at this stage is sufficient to satisfy the Court that the proceedings are frivolous and vexatious.
I read the text of s.118C to the Applicant Father and the Applicant Father said that he would consent to an Order that he not institute further proceedings without leave of the Court. Irrespective of the consent of the Applicant Father to such an Order, the Court itself must be satisfied that the proceedings are frivolous and vexatious before making such an Order.
I have recited the submissions of the Child Representative as they accord entirely with my own impression of the Applicant Father's attitude towards his responsibilities as a parent. I further have regard to the fact that on at least two occasions before the Court the Applicant Father threatened to take his own life, either with a gun or a noose, and conceded on more than one occasion that the Orders he sought were not in the best interests of the Children.
He maintained his attitude in the face of the knowledge that the Court was obliged to make only those Orders that would promote the welfare of the Children and be in their best interests.
There is no doubt that in considering what is in the best interests of the Children, regard must be had to s.60B of the Act and the right of the Children to know and be cared for by both parents and their right to contact on a regular basis.
The Applicant Father's attitude demonstrates a manifest lack of insight into his responsibility as a parent in assisting his Children in pursuing those rights.
I also have regard to the mental instability of the Applicant Father and the fact that he is currently on medication for depression. It may well be, with proper counselling and treatment, the Applicant Father is able to appreciate and enjoy an opportunity to have contact with his children, and for those reasons, despite the present expression of intention by the Applicant Father that it is better that he not have contact, I am satisfied that it is in the best interests of the Children that Orders be made in accordance with the Orders proposed by the Child Representative.
However, in the circumstances I am satisfied that the Applicant Father’s Application is frivolous and vexatious, and that it is appropriate that an Order be made under s.118(1)(c), that the Applicant Father not be permitted to institute proceedings relating to the Children without leave of a Court having jurisdiction under the Family Law Act.
The Applicant Father seeks Orders that the additional Orders and referred to in paragraph 22 herein sought by the Respondent Mother apply equally to her conduct as to his. However, there is no evidence before me of any consumption by the Respondent Mother of alcohol that would cause me to make such an Order, nor is there evidence that the Respondent Mother had discussed the Court proceedings or denigrated the Applicant Father in the presence or hearing of the Children.
In those circumstances, that Application is refused.
Accordingly, I make Orders in accordance with those proposed by the Child Representative and the Respondent Mother.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 30 March 2005
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