FAMILY COURT OF AUSTRALIA
| CANNON & ACRES | [2014] FamCA 104 |
| FAMILY LAW – CHILDREN – with whom a child spends time and communicates – allegations of parental alienation – allegations of family violence – child expresses strong views to have no time or communication with the father - order that mother have sole parental responsibility and that father spend no time with the child and have no communication with her. FAMILY LAW – PRACTICE AND PROCEDURE - mother seeks vexatious proceedings orders pursuant to s 102Q prohibiting the father from instituting proceedings – order made prohibiting proceedings under the Family Law Act 1975 (Cth) against the mother or about the child without leave of the court. |
| Access to Justice (Federal Jurisdiction) Amendment Act 2012 Health Practitioner Regulation National Law (Tasmania) Act 2010 (Tas) |
Attorney General in and for the State of NSW v Gargan [2010] NSW SC 1192
Cook & Cook (No. 6) [2010] FamCA 810
Fuller v Toms [2013] FCA 1422
Jones v Cusack [1992] HCA 4; (1992) 109 ALR 31
MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424
Marsden & Winch [2013] FamCAFC 177
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
| APPLICANT: | Ms Cannon |
| RESPONDENT: | Mr Acres |
| INDEPENDENT CHILDREN’S LAWYER: | FitzGerald & Browne |
| FILE NUMBER: | HBC | 155 | of | 2009 |
| DATE DELIVERED: | 6 March2014 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 9, 10, 11 & 13 December 2013 and 28 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Mary-Anne Ryan |
| SOLICITOR FOR THE APPLICANT: | PWB Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr John Munro |
| SOLICITOR FOR THE RESPONDENT: | John Munro & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Tony FitzGerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | FitzGerald & Browne |
Orders
All previous parenting orders in respect of S Cannon (‘the child’), born … 2001, are discharged.
Ms Cannon (‘the mother’) shall have sole parental responsibility for the child.
The child shall live with the mother.
Other than at times and by methods of communication requested in writing in advance by the child to Mr Acres (‘the father’), the father shall spend no time with the child and shall have no communication with the child.
In the event the child does make contact with the father and subsequently the child writes, emails or sends a short message service (‘SMS’) message to a mobile telecommunication device of the father requesting he cease such contact, then the father shall cease such contact and/or communication forthwith.
Other than by way of a written and specific arrangement made in advance by the child with the father, the father is restrained from:-
(a)directly or indirectly communicating with the child;
(b)approaching within one hundred (100)…
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- Cannon & Acres [2014] FamCA 104
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- [2014] FamCA 104
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CaseChat Overview and Summary
The court was required to determine the best interests of the child in circumstances marked by significant conflict and allegations of alienation. Specifically, the court had to decide whether to discharge existing parenting orders, grant the mother sole parental responsibility, and make orders regarding the father's time and communication with the child. Furthermore, the court needed to consider the mother's application for vexatious proceedings orders against the father under section 102Q of the *Family Law Act 1975* (Cth).
Benjamin J discharged all previous parenting orders and made orders for the mother to have sole parental responsibility, with the child to live with her. The father was prohibited from spending time with or communicating with the child, except at times and by methods of communication requested in writing by the child to the father. The court also made extensive restraining orders against the father, preventing him from contacting the child, approaching the child or her primary residence, or contacting her school or healthcare professionals, unless specifically arranged in advance by the child. Crucially, the court made a vexatious proceedings order prohibiting the father from instituting further proceedings under the *Family Law Act* against or in relation to the mother or child without leave of the court, with specific exceptions for costs applications, appeals, and an application for a transcript. The father's application filed on 27 February 2014 was dismissed.
Orders
Orders of the court
All previous parenting orders in respect of S Cannon (‘the child’), born … 2001, are discharged.
Ms Cannon (‘the mother’) shall have sole parental responsibility for the child.
The child shall live with the mother.
Other than at times and by methods of communication requested in writing in advance by the child to Mr Acres (‘the father’), the father shall spend no time with the child and shall have no communication with the child.
In the event the child does make contact with the father and subsequently the child writes, emails or sends a short message service (‘SMS’) message to a mobile telecommunication device of the father requesting he cease such contact, then the father shall cease such contact and/or communication forthwith.
Other than by way of a written and specific arrangement made in advance by the child with the father, the father is restrained from:-
(a) directly or indirectly communicating with the child;
(b) approaching within one hundred (100) metres of the child;
(c) attending the child’s school or requesting information from the child’s school;
(d) contacting and/or requesting information from any of the child’s health care professionals, included but not limited to doctors, dentist, orthodontist and the like;
(e) approaching within one hundred (100) metres from the home in which the child primarily resides and/or within one hundred (100) metres of any home in which the father knows the child is present.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these parenting orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The application in a case filed by the father on 27 February 2014 is dismissed.
By way of vexatious proceedings order:-
(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 102QD of the Act,
(b) This vexatious proceeding order applies to and includes any application made by or on behalf of the father to restore to the Federal Circuit Court (or any Court exercising jurisdiction under the Act) the Contravention Application filed by him in the Federal Magistrates Court (now the Federal Circuit Court) on 28 March 2013, without first having been granted leave to re-commence that proceeding pursuant to s 102QD of the Act.
(c) This vexatious proceedings order does not apply to:-
i. any costs application of the father arising from these orders, filed within the time prescribed under the Family Law Rules 2004,
ii. any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by Order of the Full Court, or
iii. an application made by the father, within three (3) months of the date of this order to the Federal Circuit Court of Australia, seeking leave to enable him to provide a copy of the transcript of proceedings heard in that court from 17 to 19 April 2012. Nothing in this order shall impose any obligation upon the Federal Circuit Court of Australia to provide or pay for the cost of provision of that transcript.
(d) IT IS NOTED the particular consequences arising from a vexatious proceedings order are set out in s 102QD of the Act, which provides:-
(1) If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:
(a) that person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and
(b) another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG.
(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.
(3) Without limiting subsection (2), the court may make:
(a) an order declaring proceedings are proceedings to which subsection (2) applies; and
(b) any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.
(4) The court may make an order under subsection (3) on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
(e) IT IS NOTED that if the father or any other person acting in concert with him wishes to apply for leave to institute a proceeding or proceedings covered by this vexatious proceedings order, the father or such other person will be obliged to comply with s 102QE of the Act which provides:-
Section 102QE(1) This section applies to a person (the applicant) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).
Section 102QE(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.
Section 102QE (3) The applicant must file an affidavit with the application that:
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
Section 102QE (4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
Pursuant to s 102QB(2)(c) the mother is directed to forward (by ordinary prepaid post and by email) a copy of these orders, the reasons upon which they are based and details for the correct name of Dr W (referred by that pseudonym in the reasons) to the Australian Health Practitioner Regulation Agency by post at … and by email to … (reference number …) within twenty one (21) days from the date of this direction.
IT IS CERTIFIED
All other extant applications for orders (except costs applications) be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).
Leave is given to the father to obtain (at his own expense) a copy of the transcript of the Family Court proceedings heard in December 2013 and to provide a copy of such transcript to Australian Health Practitioner Regulation Agency.
This Court requests and/or directs the Australian Health Practitioner Regulation Agency not to make any public disclosure of identifying information with regard to the father, mother and the child in terms of its investigation (reference number …) and consequential reports, without the leave of the Family Court.
Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Within twenty one (21) days from the date of these orders the Independent Children's Lawyer shall arrange to meet with the child and explain these orders to her.
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cannon & Acres has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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