ACRES & CANNON

[2016] FamCA 1

FAMILY COURT OF AUSTRALIA

ACRES & CANNON [2016] FamCA 1

FAMILY LAW – PRACTICE AND PROCEDURE – vexatious proceedings – leave to institute proceedings under s102QE and 102QF of the Family Law Act 1975 (Cth) – step 1.

Family Law Act 1975 (Cth)

APPLICANT: Mr Acres

RESPONDENT: Ms Cannon

FILE NUMBER: HBC 155 of 2009

DATE DELIVERED: 11 January 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: In Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. The application filed 18 November 2015 for leave pursuant to s 102QE of the Family Law Act 1975 (‘the Act’) be listed for determination before this Court at 4.00pm on 2 March 2016.

2. The applicant father cause the following documents to be served on each of the mother, the Legal Aid Commission of Tasmania, Mr Tony FitzGerald and Ms Q:-

   (a)a sealed copy of this order;

   (b)a copy of the reasons dated 11 January 2016 upon which this order is based;

   (c)the applicant father’s application in a case filed 18 November 2015;

   (d)the applicant father’s affidavit filed 18 November 2015;

   (e)the affidavit of the Dr Z filed 18 November 2015;

   (f)the applicant father’s affidavit filed 7 December 2015;

   (g)the applicant father’s affidavit filed 8 December 2015; and

   (h)the letter sent to the Court by Mr U dated 10 December 2015.

3. In relation to the service upon the mother, such service shall be effected on or before 4.00 pm 21 January 2016 and must only be served by a licenced process server.

4. In relation to the service upon the Legal Aid Commission of Tasmania, Mr Tony FitzGerald and Ms Q such service shall be effected by ordinary pre-paid post at their respective offices.

IT IS REQUESTED

1. The Legal Aid Commission of Tasmania fund Mr Tony FitzGerald as the Independent Children’s Lawyer or as an adversarial lawyer for the child, on the application by the father to commence this proceeding.

IT IS NOTED

1. Pursuant to s 102QG of the Act the mother, the Legal Aid Commission of Tasmania, Mr Tony FitzGerald and Ms Q are entitled to be heard on the father’s application filed 18 November 2015 for leave to commence this proceeding.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Acres v Cannon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 155 of 2009

Mr Acres

Applicant

And

Ms Cannon

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Acres (‘the father’) and Ms Cannon (‘the mother’) are the parents of the now 14 year old child S born in 2001 (‘the child’).

2. On 6 March 2013 I made a vexatious proceedings order by which:-

   9(a)The father is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (the Act) against or in relation to the mother or the child without first having been granted leave to commence that proceeding pursuant to s 109QD of the Act.

3. This was an application made in Chambers by the father filed 18 November 2015 seeking leave pursuant to s 102QE of the Family Law Act 1975 (Cth) (‘the Act’) for leave to institute proceedings.

4. Leave at this time has not been granted given the requirement of s 102QG which provides, relevantly:-

   S 102QG(1)Before the court makes an order granting an application under s 102QE for leave to institute proceedings it must:

   (a)Order that the applicant serve:

   (i)the person against whom the applicant propose to institute the proceedings; and

   (ii)any other person specified in the order with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

   (b)Give the applicant and each person described in sub-paragraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

5. In support of his application the father relied upon the following:-

   (a)his application filed 18 November 2015;

   (b)his affidavit filed 18 November 2015;

   (c)the affidavit of the Dr Z filed 18 November 2015;

   (d)his affidavit filed 7 December 2015;

   (e)his affidavit filed 8 December 2015; and

   (f)the letter sent to the Court by Mr U dated 10 December 2015.

6. On the face of his application it is limited to the father seeking orders that he be permitted to write to the child, once in each six week period.  The letter is not to exceed 200 words and two photos can be included in the letter.  Finally, that the letter be reviewed by Dr Z of Y Psychology prior to the letter being sent.

7. Further, the father is seeking orders that he be permitted to send a card on the child’s birthday and Christmas Day by posting them to her home address.

8. The nature of that application is quite narrow and limited. In his affidavits filed 7 December 2015 and 8 December 2015 the father, on the face of it at least, has complied with s 102QE(3) of the Act by:-

   (a)providing a list of all occasions to which he has applied for leave under this section;

   (b)providing a list of all other proceedings he has instituted in any Australian Court or Tribunal, including proceedings instituted before the commencement of this section; and

   (c)disclosing all relevant facts about the application, whether supporting or adverse to the application, that are known to the father.

9. The father discloses that his solicitor had written to the mother on 27 November 2015 looking for resolution of this matter but had not received a reply.

10. Given the limited nature of the application and the untested material before me, the proceeding appears not to fall into the vexatious category. As such, I am inclined not to summarily dismiss this application pursuant to s 102QF of the Act, but to refer it for hearing and determination in open court as envisaged by s 102QG of the Act.

11. That section, set out above, provides that I should order the applicant to serve the mother and any other person specified in the orders.

12. By the time this matter comes before the Court the child will have attained the age of 14 years and her views will need to be before the Court.  In the reasons delivered by me in early 2014, I reflected on the views of the child and they were given significant weight. 

13. As such I will direct that a copy of the father’s application, the affidavits listed earlier, the letter of submission dated 10 December 2015, the order (containing a notice pursuant to s 102QG(1)(a)(ii) of the Act) and these reasons be served upon:-

    (a)the mother;

    (b)Ms Q;

    (c)Legal Aid Commission of Tasmania; and

    (d)Mr Tony FitzGerald of FitzGerald & Browne.

14. In so far as service of the mother is concerned, it must be served by a licenced process server, not being the father or any of his friends, and that such service is to be effected before 4.00 pm 21 January 2016.

15. That service on the Legal Aid Commission Tasmania, FitzGerald and Browne and Ms Q may be by ordinary pre-paid post at their offices.  I will request Legal Aid to provided legal assistance to the child.

16. In the letter from the father’s legal practitioner an issue was raised by him as to whether this application ought or ought not be heard by me and heard by another judge of this Court.  If that application is pressed, I will consider it on 2 March 2016.

17. If I do not disqualify myself, I will consider the application for leave having regard to the appearance and submissions made by those involved.

18. Consequently, I have neither given leave nor refused leave at this time, I have simply adjourned the matter for the second step to consider the application for determination of the father’s leave application to 4.00 pm on 2 March 2016 at Hobart.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 January 2016.

Associate:     

Date:              11 January 2016