Astin and Harlow (No. 2)

[2014] FamCA 740

FAMILY COURT OF AUSTRALIA

ASTIN & HARLOW (NO. 2) [2014] FamCA 740

FAMILY LAW – PRACTICE AND PROCEDURE – Institution of proceedings – Where mother is subject to a section 118 order – Determination of whether mother’s case has a reasonable likelihood of success  - Likelihood of success not made out – Mother’s application in a case and amended application dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004
Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29
Rice & Asplund (1979) FLC 90-725
Slater & Slater [2004] FamCA 990

APPLICANT: Ms Astin

RESPONDENT: Mr Harlow

FILE NUMBER: BRC 5262 of 2008

DATE DELIVERED: 9 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 5 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the mother’s Application in a Case filed 24 June 2014 be dismissed.

2. That the mother’s Amended Initiating Application filed 28 January 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Astin & Harlow (No. 2) 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 MELBOURNE

FILE NUMBER: BRC 5262 of 2008

Ms Astin

Applicant

And

Mr Harlow

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is the mother of D (“the child”) who is aged 16 years and five months. 
2. By Application in a Case filed 24 June 2014 the mother seeks a raft of orders with respect to the child, including orders for the appointment of an Independent Children’s Lawyer and that orders made by consent in 2006, which provided that the father have sole responsibility for making decisions regarding the child’s care, welfare and development be discharged.
3. However, before there can be a consideration of any of those matters the first application to be determined by the Court is the question of whether or not the mother should have leave to bring substantive proceedings.  The need for such leave is established by order 9 of the Orders made by Barry J on 26 June 2006.  That order, which is made by consent provides as follows:-

That neither party file any further application in relation to parenting orders or arrangements in any court having jurisdiction under the Family Law Act 1975 as amended, without first obtaining the leave of the Family Court of Australia to do so.

4. Hence, before there can be any consideration of the other relief sought by the mother in her application, I must first determine whether she should be granted leave to make further application in relation to parenting orders with respect to the child. 

BACKGROUND

5. The mother is Ms Astin, who is aged 50 years.  Her occupation is described as a healthcare worker. 
6. The father is Mr Harlow, aged 53 years.  He is described as a consultant.
7. The parties commenced cohabitation in 1996 and separated in 2000.  The child was born in March 1998.
8. Since the parties’ separation in 2000, the child has been the subject of extensive litigation.  The first application was lodged by the father on 9 November 2000.  Since that time there have been no less than four substantive hearings in the matter, including an eight day trial before Monteith J in 2002, a three day trial before Barry J in 2006, the hearing of three contravention applications and an appeal to the Full Court in 2007 and a three day trial before Barry J in 2009.  In addition there have been numerous interim hearings with respect to parenting arrangements for the child.
9. The matter was last before this Court in February 2014 when Cronin J determined an application by the mother seeking orders inter alia for the appointment of an Independent Children’s Lawyer, and injunctions restraining the father from removing the child from the Commonwealth of Australia.  That application was heard and determined by Cronin J on 19 February 2014.  That day his Honour dismissed the mother’s Application in a Case.  Further, at paragraph 6 his Honour ordered:-

That the substantive application of the mother filed 29 January 2014 and the response of the father thereto are both stayed until further order pending the determination of any application by either for leave to bring those substantive proceedings having regard to the orders of the Court made on 26 June 2006.

10. It is the substantive application referred to in that order which the mother now seeks to be listed for an urgent hearing.
11. That substantive application seeks a location order, orders for the appointment of an Independent Children’s Lawyer, orders regarding the child’s attendance at school in Australia, injunctions restraining the father from removing the child from the Commonwealth of Australia and orders regarding the safe-keeping of the child’s passport.
12. The child has lived with the father since the determination of the first final hearing in 2002 when she was aged four.  At that time orders were made by Monteith J that she live with the father and spend alternate weekends with the mother. 
13. The second trial which was conducted before Barry J in 2006, culminated in final orders which provided that the child live with the father and have increasing unsupervised time with the mother.  Further, orders were made that the father have sole parental responsibility for the child, provided that he keep the mother informed of his decisions. 
14. The matters were re-litigated in 2010 before Barry J.  His Honour then made orders that the child live with the father and that the father have sole responsibility for all decisions involving the care, welfare and development for the child.  Further, orders were made that the mother spend no time with the child save at the specific request of the child with any such time to be supervised at a contact centre or supervised in such other form as the parties may agree in writing.  Pursuant to those orders the mother was prohibited from telephoning the child at any time.  However, an order was made that:-

The child be at liberty to communicate with the mother by email, by post or by phone at any time the child wishes to do so.

15. Consequently, since 2010, when the child was aged 12 years, any time the mother has with the child is at the child’s election.  Further any communication between mother and the child was to be upon the same basis, that is, as a result of the child initiating such communication. 
16. It is against that backdrop that the mother now seeks leave to re-open the parenting proceedings.

MATERIAL RELIED UPON BY THE APPLICANT

17. The applicant relied upon the following material:

·Application in a Case filed 24 June 2014;

·Affidavit of the applicant file 24 June 2014; and

·Affidavit of the applicant filed 19 February 2014.

THE LAW

18. Part XIB of the Act now deals with vexatious proceedings. Previously those matters were dealt with pursuant to s 118 of the Act.  The order made by Barry J on 26 June 2006 restraining the parties from filing further applications referred to herein is an order made pursuant to s 118(1)(c) of the Act. 
19. Rule11.05 of the Family Law Rules 2004 deals with applications for leave to institute proceedings after vexatious proceedings orders are made. It provided as follows:-

(1)This rule applies if the court has made an order under:

(a) subsection 102QB (2) of the Act; or

(b)any of the following, as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012:

(i)     paragraph 118(1)(c) or subsection 118(2) of the Act;

(ii)    paragraph 11.04(1)(b) of these Rules;

and the person against whom the order was made applies for leave to institute or continue proceedings.

(2)An application under subsection 102QE (2) of the Act must be:

(a)in the form of an Application in a Case; and

(b)made without notice to any other party.

Note 1: For the contents of the affidavit that must be filed with the application, see subsection 102QE (3) of the Act.

Note 2: For rules 11.04 and 11.05 as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012, see Schedule 7 of these Rules.

(3)    On the first court date for the application, the court may:

(a)dismiss the application; or

(b)order the person to:

(i)     serve the application and affidavit; and

(ii)    file and serve any further affidavits in support of the application; and

(iii)   list the application for hearing.

20. As the order made by Barry J on 26 June 2006 is an order made pursuant to s 118(1)(c) of the Act, Rule 11.05 applies to the current application.
21. Schedule 7 of the Family Law Rules sets out the rules for vexatious proceedings immediately before the commencement of Schedule 3 to the Act Access to Justice (Federal Jurisdiction) Amendment Act 2012 (being the legislation which enacts Part XIB of the Act). Rules 11.04 and 11.05 as set out in Schedule 7 of the Rules detail the procedure for the determination of an application for permission to start a case.
22. Rule 11.05(2) of Schedule 7 provides that an application for leave must be made without notice to any other party.
23. Rule 11.05(3) in Schedule 7 provides that on the first return date of an application for leave to start a case, the Court may dismiss the application or order the person to serve the application and affidavit and list the matter for hearing.
24. Rule 11.05(4) of Schedule 7 states that:-

The Court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.

25. Hence in assessing the mother’s application for leave to pursue her substantive application, it is necessary for me to determine whether or not that application has a reasonable likelihood of success.  If I am satisfied that there is no reasonable likelihood of success, then the mother’s application for leave to proceed with that application must fail.  The parenting orders made by Barry J were final parenting orders.  Accordingly, in order to persuade me as to her prospects of success, the mother must establish that there has been a change of circumstances which would justify the re-opening of the parenting proceedings (Rice & Asplund (1979) FLC 90-725).
26. The need for such procedures in applications for leave is explained by O’Ryan J in Slater & Slater [2004] FamCA 990 where he stated at paragraph 51 that the purpose of the requirements of the Rules in relation to vexatious litigants is to:-

…prevent the other party from needing to suffer the time and expense of coming to court to oppose numerous unmeritorious applications by the person against whom the order was made.  If the court decides the application may have merit, the applicant must then give the respondent notice of the application.  Thus the respondent will have the opportunity to be heard in relation to those applications that the court has considered to have some possible merit.

WHAT IS THE SUBSTANTIVE RELIEF SOUGHT BY THE MOTHER?

27. In her Amended Initiating Application filed 28 January 2014 the mother seeks 11 orders on a final basis.  Those orders sought include:-

·A location order in relation to the child;

·The appointment of an Independent Children’s Lawyer to “oversee the care, welfare and development of the child”;

·That the child attend a “mainstream high school in Australia in 2014”;

·That “the communications gateway is opened” between the child and her mother; and

·Injunctions restraining the father from removing the child from the Commonwealth of Australia.

28. The mother’s affidavit filed 24 June 2014 contains many assertions made by the mother with respect to her concerns as to the child’s location, her health and welfare.  Those assertions are made notwithstanding a striking absence of any facts which would support the making of orders as sought by the mother.

Location orders 

29. The mother’s evidence with respect to the orders she seeks for locating the child is set out at paragraph 11 of her affidavit.  The mother there makes the assertion that “it appears that [the child] has not been back to Australia” since the last hearing in 2014.  She asserts a belief that the father and the child are living permanently in Malaysia.  However, it became apparent during the course of the mother’s oral submissions that:-

·As at February 2014 the child was in Australia and was soon to travel to Malaysia with her father;

·The child continues to be enrolled in a school based in Brisbane and as recently as June 2014 the mother received an email from the child’s school providing her with a copy of the child’s Semester 1, 2014 school report; and

·The mother has an email address for the father and his solicitor.  The mother is critical of the failure of the father to respond to her emails. 

30. During the course of her oral submissions the mother conceded that there was no evidence that the child has moved from her previous address to live permanently in Malaysia.
31. Having regard to the mother’s evidence and the concessions made by her during her oral argument, I am satisfied that the mother’s application for a location order is an application without justification.

School selection 

32. Given the concessions made by the mother during her oral submissions that the child continues to be enrolled at the school in Brisbane, I am satisfied that there is no basis and little merit in her application that the child attend a “mainstream high school in Australia”.  Further, having regard to the orders of Barry J made 11 May 2010 (“the 2010 order”) which provide that the father has sole parental responsibility for making decisions regarding the child’s long term care, welfare and development, it is evident that decision making with respect to school selection is invested in the father.  I am satisfied that the mother adduced no evidence which would warrant a reconsideration of that issue.

Information regarding medical treatment

33. A further issue raised by the mother relates to her concern that the child is not continuing to attend medical specialists or any other doctors.  The mother’s evidence is that the child was diagnosed with a condition known as hypercalcinosis as an infant.  The mother deposes that the child has failed to attend specialist appointments with Dr O, who has previously treated her with respect to that condition.  The 2010 orders provide as follows:-

The father is to notify the mother in writing of any medical treatment the child may require from time to time with details of the nature of the treatment and the medical practitioner providing the same.

34. That order does not require the father to notify the mother of specialist appointments attended by the child.  As noted above, the 2010 orders provide that the father is to have sole responsibility for all decisions involving the care, welfare and development of the child.  That order imparts all decision-making responsibility with respect to the child’s medical care upon the father.  Thus, on the face of the 2010 orders, it would appear that there is little basis for the complaints made by the mother with respect to the father’s failure to inform her of medical appointments. 
35. Further, I note that in her affidavit filed 19 February 2014 the mother deposes that the father has not provided information regarding the child’s medical treatment since 2010.  It would appear that the mother has raised this issue for the first time in her application filed in January 2014, some three and a half years after the 2010 orders were made.
36. Having regard to the terms of the orders in relation to the provision of medical information and having regard to the child’s age, which gives rise to considerations as to her privacy, I find that there is no reasonable prospect of success in relation to the mother’s substantive application with respect to this matter.

Other allegations

37. At paragraph 37 of her affidavit the mother deposes that she has been contacted by the child’s friends.  She there attributes words alleged to have been said to her by the child’s friends.  She does not name those friends nor does she indicate when those comments were made.  The material is on any view scandalous, the inference from those alleged statements being that the child has been a victim of sexual abuse at the hands of her father. 
38. When addressing me in relation to those matters the mother indicated that she had “friended” a former school friend of the child on Facebook and it was in that setting that the statements were alleged to be made.  The mother did not provide copies of those alleged exchanges.  Given the circumstances in which the statements are alleged to have been made, and absent any evidence as to the identity of the maker of the statement or when the statement is alleged to have been made, I place little weight on that evidence.
39. Many of the matters relied upon by the mother in her affidavit of 24 June 2014 pre-date the 2010 orders.  For example at paragraph 28 of that affidavit the mother refers to events alleged to have occurred in 2008 which the mother submits demonstrates the father’s efforts to alienate the child from her. 
40. Further, paragraphs 38 to 42 of the mother’s affidavit relate to matters that were relevant to the proceedings heard by Barry J in 2009.  Indeed, at paragraph 38 the mother purports to quote a letter to the father from his solicitor sent in 2007.  Not only does that communication pre-date the 2009 hearing which culminated in the 2010 orders, it would indicate that the mother has obtained what would likely be privileged communications passing between the father and his lawyer.  Such communication is likely to be privileged.  As to how the mother came into possession of that communication is not stated in her affidavit.

Appointment of Independent Children’s Lawyer

41. During the course of her oral submissions the mother expressed general concerns as to the child’s care, welfare and development.  It was her desire that an Independent Children’s Lawyer be appointed effectively to undertake a welfare check of the child.  I informed the mother during the course of her submissions that that was not the function of an Independent Children’s Lawyer and that it was unlikely the Court would be persuaded to make such appointment at a substantive hearing.
42. I enquired of the mother as to what she sought by way of an opening of the “communication gateway” with the child.  The mother was unable to articulate what she meant in seeking that order.  I also inquired whether she was in fact seeking some change to the orders with respect to the child’s living arrangements or the manner in which the child is to spend time with the mother.  The mother confirmed that she was not seeking to alter those orders.

CONCLUSION

43. It was evident during the course of the mother’s submissions that the fact that she has had such limited communication with the child since the making of the 2010 orders is a source of ongoing distress to her.  Further it is evident that it is a matter of immense sadness to her that she has been provided with limited information in respect of the child’s progress since those orders were made. 
44. However, in determining the mother’s application for leave to proceed with her substantive application, it is not a function of this Court to look behind those orders.  Ultimately I must consider whether the application the mother now seeks to make has a reasonable likelihood of success.
45. In assessing the merits of the mother’s substantive application I am mindful of the considerations articulated by Kirby J in approaching an application for leave in the decision Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 where at paragraph 8 his Honour said:-

First, it is always important for every judge to keep an open mind in case a person who has been rejected by the courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit.  Vigilance, and not impatience, are specially required where that person is not legally represented.

Secondly, it is regarded as a serious thing in this country to keep a person out of the courts.  The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction.  It is a rare thing to declare a person a vexatious litigant…

Thirdly, the court must never shy away from the determination of a point sought to be argued simply because it may have major ramifications.

46. Whilst leave to commence proceedings is not an application for a parenting order as defined in s 64B of the Act, such that the paramountcy principle established pursuant to s 60CA is invoked, I am conscious of the views of the High Court in CDJ v VAJ (1998) 197 CLR 197 at [86] per McHugh, Gummow and Callinan JJ where they referred to the “constant shadow” of the paramountcy principle in child welfare cases. That is, in the determination of the leave application made by the mother, I am mindful of the potential impact of such proceedings upon the child, she being a child who has been the subject of litigation since 2000.
47. I am also mindful of the fact that were I to grant leave to the mother to proceed with her substantive application, such application is unlikely to be heard until mid-2015, when the child will be aged approximately 17½ years. 
48. During the course of her oral submissions I informed the mother that it was likely that any substantive hearing would not be dealt with until 2015.  Having regard to the child’s age I raised with the mother the issue of whether there could be any benefit to a child who would soon turn 18 to having such proceedings conducted in this Court.  I also informed the mother that having regard to her age, the child’s views were likely to be given significant weight in the determination of her best interests.  Notwithstanding my express concerns, the mother indicated that she did not waver in her desire to press her application before me.
49. Having reviewed the allegations of the mother as set out in her affidavits, I am satisfied that there is little prospect of orders being made as sought by her in her substantive application.  The reality is that even were leave to be granted the child the subject of the substantive application will be 17 years or older at the time the proceedings are determined by the Court.
50. The mother’s own material indicates that she is able to communicate with the father via email.  Further, she communicates with the father through his solicitor in Queensland.  That she does not receive responses to her communications that are satisfactory to her is not a basis for the orders she seeks. 
51. Further it is evident that when she desires to do so the child communicates with the mother.  This occurred as recently as February 2014 when the child initiated telephone communication with her.  This is in keeping with the orders of Barry J made in 2010 that the child be the instigator of any communication with the mother.  Again that such communication is not satisfactory to the mother is not a basis for a change to the existing arrangements.
52. The mother complains as to the school attended by the child.  The mother’s own evidence is that the child continues to be enrolled in a school based in Brisbane and that that school provides information as to the child’s progress, most recently her June 2014 school report.  That the school selected by the father is not the mother’s preferred choice is not, in my view, a basis for re-litigating these issues.
53. Similarly the fact that the father and the child move between Australia and Malaysia due to the father’s Malaysian business interests is not a basis for re-litigating parenting proceedings.  In circumstances where the father conducts a business off-shore and travels regularly overseas with the child in the course of his business, orders as sought by the mother are a significant imposition. The mother provides no evidence which would support the making of the injunctions sought by her restraining the child’s movement from the Commonwealth of Australia or the need for the Court to act as the keeper of the child’s passport. 
54. Having regard to all of the above matters, I am satisfied that that application has no reasonable likelihood of of success.
55. In all of the circumstances, particularly having regard to the age of the child the subject of these proceedings, I am satisfied that there is no basis for a granting of leave to proceed on the substantive application.  Accordingly, the orders I make are as follows:-

1.That the mother’s Application in a Case filed 24 June 2014 be dismissed.

2.That the mother’s Amended Initiating Application filed 28 January 2014 be dismissed.

I certify that the preceding fifty-five(55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 September 2014

Associate: 

Date:  9 September 2014