D and W - [2002] FMCAfam 432

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & W

[2002] FMCAfam 432

FAMILY LAW – Children – contact and specific issue orders – application for summary dismissal – abuse of process.

EVIDENCE – Statutory privilege for confidential counselling communication – court can receive otherwise inadmissible evidence to determine abuse of process application – application for summary dismissal refused.

Family Law Act 1975, ss.9N, 68(F)(2), 68B, 118

Commonwealth Evidence Act 1995, ss.1, 131, 131(2)(b), 131(2)(g), 131(2)(k), 135

Judiciary Act 1903, s.80
Federal Magistrates Act 1999, s.10
Federal Magistrate Court Rules, r13.3
Child Support (Assessment) Act 1989

Bennett v Bennett (2000) FLC 93-088
Bigg v Suzi (1998) FLC 92-799
R.V. Mogley (1992) 28 NSWLR 735 at 739

In the Marriage of Takash (No 2) (1981) 6 FLR 848
Taylor v Taylor (1979) 25 ALR 418
Cocker v Tempest (1841) 7 M and W 501
Tregally v Stuartson Stubbs and Collete Limited (1966) 66 SR 334 and 335

Hopkins v Van den Graft (1998) 43 NSWLR 2290

Ferral v McTaggart, (trustees for Sapphire Trust) and Orsv Blyton (2000) FLC 93-054

Van Der Lee and Ors v State of New South Wales & Ors [2002] NSWCA 286
W v W: Abuse allegations (2001) FLC 93-085

Applicant:

N D

Respondent:

D J W

File No:

SYM354 of 2002

Delivered on:

27 November 2002

Delivered at:

Wollongong

Hearing Date:

26 November 2002

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr G. Hodgson

Solicitors for the Applicant:

Marriott & Oliver

Solicitor Advocate for the Respondent:

Mr Saunders

Solicitors for the Respondent:

Elrington Boardman Allport

ORDERS

I list this matter for final hearing as a one day matter to commence in the circuit starting 3 February 2003.
The matter is listed for call over at 9 am on 22 January 2003.
Pursuant to s.62G(2) that a Family Report is prepared which report deals with the child's wishes, the nature of his relationship with his parents, the effect of changing his circumstances, the parties attitudes to responsibilities of parenting and any other matter the Court considers relevant.
That the Applicant pay the hearing fee or obtain a waiver by 1 January 2003.
Both parties file and serve all Affidavits upon which they rely by
1 January 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM354 of 2002

N D

Applicant

And

D J W

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

The Proceedings

These are proceedings between N D and D W that concern their son

C J W. C was born on 18 April 1990 and has always lived with his mother.

The Application

N D (“the mother”) filed an application for parenting orders on

26 June 2002 in the Family Court. The proceedings essentially concern an application by her to change C's surname which would give effect to an informal change of name effected some years ago. She also desires orders that would facilitate a passport issuing for the child.
The gravamen of her application is that C and his father have had extremely limited contact, at least since C was about 6 years old and none since 1999. She attributes responsibility for the child's lack of relationship with his father to the respondent's disinterest in his son.
In her affidavit she identifies factual matters, that if accepted at trial, reveal a proper evidentiary basis for the case that she seeks to make out.
D W (“the father”) opposes her application. On 7 August 2002 he filed a response that identifies the orders sought. He proposes, in essence, that there be a graduated arrangement for contact and that otherwise the application be dismissed. The precise orders are set out below:
1.That the child C J W born 18 April 1990 (“the child”) have contact with the father as follows:
(a)On one occasion in Wollongong for half an hour, such contact to be supervised by a counsellor of the Family Court.
(b)On one occasion the following day in Wollongong for one hour, such contact to be supervised by a counsellor of the Family Court.
(c)For one night overnight in the father’s home in Canberra from 10.00 am to 5.00 pm the following day.
(d)Thereafter, every second weekend from Friday at 7.00 pm to the following Sunday at 5.00 pm or the following Monday in the event that it falls in a public holiday.
(e)For half of all school holidays being the first half of the remaining school holidays in 2003 and thereafter alternating between the first and the second half of the school holidays each year.
(f)That whenever the child has contact with the father during the first half of the Christmas/Summer school holidays it shall include Christmas Day and New Years Day.
(g)Telephone contact once a week at a time and date as defined by the Court.
2.That for the purpose of contact in accordance with Orders 1(d) to (f) above that the father collect the child at the commencement of contact and the mother collect the child from the father’s home at the conclusion of contact on each occasion.
3.That the mother will keep the father advised of the child’s current address and telephone number.
4.That neither party will say unkind or unpleasant things about the other to the child in the presence of the child or allow any other person to do so.
5.That the mother’s application filed on 26 June 2002 be dismissed.
On 2 September 2002 this matter was listed before Federal Magistrate Brewster for directions. The court made the following orders:
1.That the father be given leave to defend the mother’s application in relation to the issue of a name change and a passport and to pursue his application for contact orders.
2.That the father file and serve any affidavits upon which he relies by close of business on 16 September 2002.
3.That the mother file and serve further affidavits upon which she relies together with a Minute of the Orders she seeks in relation to contact issues by close of business on 11 October 2002.
4.That each party file at the commencement of the hearing a chronology of relevant events.
5.That the matter is adjourned to the call-over at 9.00am on 16 October 2002 with a view to being heard in the next sittings of this Court.
AND IT IS NOTED
1.That the mother’s solicitor maintained that the matter should proceed today as an undefended hearing because there was sufficient evidence that the father’s objection to the child being known as D and to signing documents for the issue of a passport for the child in this name is not bona fide but a tactic to put pressure on her to have the child adopted by her and her present partner with a view to relieving the father of any obligation to pay child support. I was not prepared to reach this conclusion without giving the father the opportunity to put on material in support of his case. However I advised the solicitor for the mother that in the event that the Federal Magistrate hearing this matter reaches this conclusion the Court would entertain an application that he pay the mother’s costs and an application that any costs order be on an indemnity basis.
Part of the relief sought by the father concerns an amendment to the court's record of that day.
The matter comes before me for determination of a number of preliminary issues. Firstly, the father makes an application to amend the court's record and to remove reference in the mother’s affidavit material, to negotiations and an alleged agreement reached earlier between the parties that compromised the issues.
The basis of his application is:
·That aspects of the material are protected by virtue of s.19N of the Family Law Act 1975;
·Section 131 of the Commonwealth Evidence Act 1995 renders inadmissible evidence of negotiations subject to the exceptions contained in s131(2), and
·That pursuant to s.135 of the Commonwealth Evidence Act 1995 it would be unfairly prejudicial to admit the evidence.
These, as are all applications which are usually determined by the presiding Federal Magistrate at the start of the hearing. The father sought that they be dealt with as a preliminary point because it was submitted that their inclusion, even subject to challenge argument, in materials presented to the trial Federal Magistrate would so seriously taint the proceedings that he could not receive a fair hearing. It is not submitted that the court would not be able to properly disregard the material if it were ruled inadmissible. Rather that the father’s perception of the process that he would have a fair hearing would be diminished.
The mother also made a preliminary application. Her application is for the summary dismissal of the father’s response. If successful, this would mean that her substantive application would be heard on an undefended basis. Mr Hodgson emphasised that her application was not made pursuant to s.118 of the Family Law Act 1975. This section provides the court with power to deal with frivolous or vexatious proceedings. I apprehend that this is a strategic decision based upon the narrow approach to the section revealed in cases such as Bennett v Bennett (2001) FLC 93-088.
The application for summary dismissal is pressed in reliance on s.11 of the Commonwealth Evidence Act 1995. Section 11 reads:
(1)The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly, or by necessary intendment
(2)In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.
This section, in my view, does not provide a source of power. Rather, it reserves to a court the power that it otherwise has. The Federal Magistrates Court is, by virtue of s.10 of the Federal Magistrates Act 1999 a court established by chapter 3 of the Constitution and it is a court of record. Federal Magistrates are appointed as Justices pursuant to chapter 3 of the Constitution. The court is a court of law and equity. It is a court of record that exercises power inter alia given to it pursuant to the Family Law Act 1975.
Section 80 of the Judiciary Act 1903 incorporates the common law jurisprudence on implied powers. The section states:
So far as the laws of the Commonwealth are not applicable, or so far as their provisions are insufficient to carry them into effect or to provide adequate remedies or punishment, the Common Law in Australia as modified by the Constitution and by the statute law in force in a state or territory in which the jurisdiction is exercised is held shall, so far as is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising Federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.
In R.V. Mogley (1992) 28 NSWLR 735 at 739 and following, the Court of Appeal when dealing with a similar issue concerning the operation of a state Magistrates Court held:
Where a court has jurisdiction under a statute that no provision was made in the statute for the making of an order which is necessary to carry the court's statutory power into effect. The court, although it does not have an inherent power, has an implied power.
Although those comments related to a state Magistrates Court, and in spite of the important differences between state Magistrates Courts and the Federal Magistrates Court, the comments are no less applicable.
In the Marriage of Tackach (No 2)(1981) 6 Fam LR 848 Gibson J when discussing the Family Court said:
“Further, the court has some inherent powers (Taylor v Taylor (1979) 25 ALR 418; 5 Fam LR 289; [1979] FCL 90-674 and, in my view, such powers would include the granting of a stay of proceedings in an appropriate case. In a passage in Cocker v Tempest (1841) 7 M and W 501 reproduced in the reasons for judgment of the New South Wales Court of Appeal in Tringali v Stewardson, Stubbs & Collect Ltd (1966) 66 SR 335 at 344, Alderson B said, "The power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; was it not so the court would be obliged to sit still and see its own process abused for the purposes of injustice. The exercise of the power is certainly a matter for the most careful discretion."
The High Court made it clear that such powers would include the granting of a stay of proceedings in an appropriate case. See Taylor v Taylor (1979) 25 ALR 418
In a passage in Cocker v Tempest (supra), referred to in the reasons for judgment by the NSW Court of Appeal in Tregally v Stuartson Stubbs and Collete Limited (1966) 66 SR 334 and 335, Boughton B said:
“The power of each Court over its own process is unlimited. It is a power incident to all Courts inferior as well as superior. Or be it not so the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion.”
These principles were acknowledged in Hopkins v Van den Graft (1998) 43 NSWLR 2290. Thus, I am satisfied that this court has the power, as an incident of its function as a court of justice and equity, to make the orders sought by the mother for summary dismissal.
The process that the court would follow in general federal law matters, is dealt with in Division 13.3 of Federal Magistrates Court Rules. Curiously, and for no reason that is apparent from the rules, the operation of that rule is limited to the court's general federal law jurisdiction. This is an obvious gap in the rules that needs to be addressed with some priority. Because of my earlier ruling as to the courts power, the absence of a formal rule does not limit the court’s jurisdiction.
What is the test that the court should apply in an application such as that made by the mother? Although Mr Hodgson did not adopt it, I am of the view that the principles identified by the Full Court of the Family Court in Ferral v McTaggart, (trustees for Sapphire Trust) and Others v Blyton (2000) FLC 93-054 apply. There the Full Court cited with approval the decision of an earlier Full Court in Bigg v Suzi (1998) FLC 92-799 where Ellis, Lindenmeyer and Rose JJ summarised the principles in an application for summary dismissal as follows:
(a)The power for summary dismissal is a discretionary one.
(b)Relief is ‘rarely and sparingly provided’.
(c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described, “ that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d)A weak case or one that is unlikely to succeed is not sufficient to warrant termination.
(e)‘If there was a serious legal question to be determined it should ordinarily be determined at a trial’.
(f)If notwithstanding the defects of pleadings it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleading.
In addition to the summary dismissal test identified by the Full Court the court must consider whether the proceedings are commenced for the purpose of obtaining a collateral advantage, not reasonably related to an order, that could be obtained in the proceedings: see Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286.
The grounds referred to in Bigg v Suzi (supra) in paragraphs (c) and (f) do not arise. I am dealing with the issue of summary dismissal first because in order to consider the application for summary dismissal I must firstly receive the evidence that the father seeks to strike out. The court's capacity to receive the evidence in an application that concerns dismissal because of an abuse of process is discussed in Van Der Lee and Ors v State of New South Wales & Ors (supra). There Hodgson J says:
“However, it is not necessary to determine that question in this case. I think s.11(2) does have the effect that, when evidence is tendered that could be evidence of an abuse of process, albeit evidence of without prejudice settlement negotiations the Court may receive that evidence on voir dire; and then, if that evidence does, either by itself or in combination with other evidence, establish an abuse of process, the Court may rule the evidence admissible and make appropriate orders to deal with that abuse of process. In my opinion, the powers of the Court with respect to abuse of process include its powers to receive evidence, and in my opinion, the authorities relied on by the claimants show that, at common law, communications evidencing abuse of process will not be protected by without prejudice privilege. I do not think that s.131 provides otherwise, either expressly or by necessary intendment, particularly with s.132(2)(k) does not apply in cases of abuse of process.” (at paragraph 62).
Accordingly, I am satisfied that I can receive the evidence that is challenged by the father as inadmissible, for the purposes of considering the application to dismiss his response on the basis that it is an abuse of the court's process.
The evidence can be summarised thus. On 15 July 2002 the parties attended confidential counselling ordered pursuant to s.62(F)(2). At the conference it is alleged the parties reached agreement. The memorandum that issued by the court counsellor is attached to the mother's affidavit. That document reveals that agreement was reached in relation to contact, specific issues and child support.
Section 19N of the Family Law Act 1975 provides a statutory privilege in relation to the admission into evidence for any purpose matters that occurred during a process to which the section relates. See W & W. Abuse Allegations (2001) FLC 93-085.
The material that has been presented by the mother has been carefully presented. I am satisfied that s.19N does not extend to the memorandum that issued by the court counsellor. It is careful in its terms and does no more than indicate an agreement has or has not been reached. Hence the document is admissible.
The mother alleges that in early 2002 she and the father discussed the issue of a passport for their son. She says that the respondent told her, in relation to signing a passport that:
If you want a passport then you are going to have to adopt him.

I don't see why I should pay maintenance for a child I don't see.
Then there were further discussions during which the father said to her:
If C doesn't want to see me then you should adopt him. I'm not going to keep paying money for a child I don't see.
On 25 July 2002 in furtherance of the agreement apparently reached during the counselling session on 15 July 2002, the father's solicitor wrote an open letter confirming that agreement had been reached and that it was now necessary to prepare documentation that reflected the agreement.
On 2 August 2002 the father's solicitors wrote further correspondence that was clearly intended to be “without prejudice”, in which the father put forward two options. The first is that he would seek to further his relationship with his son and invites the mother's cooperation to resume a relationship with him. Secondly, and in the alternative, that the parties take all steps to bring to an end as far as possible the relationship that the child has with the father. This included the future financial obligations that the father would have towards the child.
Because the mother is in receipt of some form of government benefit the parties could not currently give effect to an agreement which would, for all intents and purposes, end the child's relationship with his father, including his obligation to pay child support. That is because the Child Support (Assessment) Act 1989 does not enable the mother to enter into a binding agreement which would give the father the financial relief that is part of his alternate proposal.

The mother says that the father's decision to pursue the option whereby he maintains a relationship with his son is nothing more than leverage by him to coerce her to start proceedings for the adoption of C by her current partner. It is submitted that the court's process is therefore being abused.
The court's jurisdiction has been engaged by the mother and also by the father seeking relief pursuant to s.68F(2) of the Family Law Act 1975 or in the alternative, s.68B. Because neither of those sections provide a basis by which the court could provide financial relief to the father, the mother submits that the abuse of court process is clear. That is the father's ultimate aim in the proceedings is to achieve an outcome that is not available to him.
The submissions by her solicitor emphasise the stress these proceedings place on the applicant and her family. Also, the consequences for C of being involved in defended parenting proceedings.
I have considered the submissions very carefully. It is clear from Vandermere & Others & State of New South Wales (supra) that an application that is made for a tactical advantage is not an abuse of the court's power, simplicata there must be more.
On the evidence that is presented by the father it is possible that he may be able to persuade the court that his contact should be re-established with his son. C, as Mr Saunders submitted yesterday, may well have something to say about the application. The mother's assumption is that C will not welcome the father's application. At this point of time the court has not had the opportunity to hear from C. C is nearly 13 years old and I am satisfied that before a court refuses a party the opportunity to ventilate an issue concerning their child, particularly when the court can have the benefit of the child’s input, that it ought not proceed as the mother presses.
The abuse of process that is alleged highlights nothing other than the agonising decisions that some parents make concerning their children. It is the court's experience that parents, in the situation that both of these parents are in, can take into account matters that are apparently irrelevant in the sense of the manner in which the court may make its decision pursuant to s.68F(2) and s.65E of the Family Law Act 1975, but which are nonetheless, matters which are important to an individual. It is the court's common experience that parties find court processes daunting and can find the process of separation and re-partnering difficult. That a parent has considered at an earlier point in time abandoning litigation and relinquishing a relationship with their child could not, in a court concerned about children and delivering justice to families, bind the court later in time if the parent decides to proceed.
I am satisfied for these reasons that the application for summary dismissal must be refused.
I turn now to consider the father's application for the amendment to the court's record of 2 September 2002. The application, as I have earlier indicated, relies upon the operation of s.19N of the Family Law Act 1975, s.131 and s.135 of the Commonwealth Evidence Act 1995.

I have already indicated that I do not consider that s.19N applies to the memorandum that issued from the court counsellor.
The material that is otherwise the subject of challenge does not disclose, in whole or in part, the conversations or events that occurred during the counselling session on 15 July 2002. Thus s.19N does not apply to this part of the evidence.
Section 131 of the Commonwealth Evidence Act 1995 protects communications that are in the nature of negotiations conducted to compromise the issues before the court. It can, in my view, extend to communications undertaken prior to the commencement of proceedings. It does not extend to all the discussions undertaken by the parties on matters that they may be ultimately in dispute about.
The submission made by Mr Saunders is to the effect that none of the exceptions in s.131(2) apply. I do not agree. Mr Hodgson submitted that s.131(2)(b) applied because the parties had disclosed the substance of the agreement that had been reached between them. I accept Mr Saunders' submission that the disclosure referred to in the sub section does not extend to disclosure for the purpose of determining the issue. Section 131(2)(b), according to Mr Hodgson, applied because the material is in furtherance of a deliberate abuse of the court's power.

I have already ruled that the agreement, in essence, does not support the summary dismissal on the basis of an abuse of power and thus, s.131(2)(k) does not apply.
However, s.131(2)(g) does apply. The subsection provides, in essence, that the court can receive evidence if the court may be misled unless evidence of the communication or document is adduced to contradict or qualify the evidence. The material that the mother relies on is that the parties have had discussions over a period of time in relation to which the father has repeatedly told her that he would relinquish his relationship with his son and concede the orders she proposed provided he was relieved from his obligation to pay child support. The connotation that the mother puts on that is that this is an absolute dereliction of his responsibility as a parent. The fear that the father has is the that court will be so influenced by his earlier decision that this would influence the court's decision. I do not accept the latter, nor indeed do I accept the former.
However, the material forms part of the discussions that these parents have had over a considerable period of time concerning their son. Potentially, it is important evidence that may assist the court to understand the parties' attitudes to their responsibility as parents and it may also be relevant under s.68F(2)(l). Without this material the court may be misled in the sense that it may not fully understand the basis upon which the father absented himself, if that is the case, from the child's life. I am satisfied that the material should be admitted by virtue of s.131(2)(g) of the Family Law Act 1975.
Having made that decision I must then consider s.135 of the Commonwealth Evidence Act 1995. In essence, the issue is whether the material is unfairly prejudicial to the father. This general discretion is one that is routinely used in jury trial. It is less frequently used in judge alone trials. That is because the court's obligation when a judge sits alone is to rule on evidence and when material is ruled inadmissible it must be disregarded. That is fundamental to the operation of most civil courts.
This material could not be said to be so unfairly prejudicial to the father that its probative value is substantially outweighed by that prejudice. This material is potentially influential, as I have already indicated, in assisting the court to understand the length of time during which this child has not had contact with his father. As I have already indicated, the fact that at an earlier point in time a parent took the decision to relinquish a relationship with their child does not override the other factors that are relevant to s.68F(2). Parents have terrible and difficult decisions to make at different times in their lives as parents. Their circumstances change so too does their capacity to involve themselves in their child's life.
I am not satisfied that this material should be excluded by virtue of s.135. It follows from that, that even if I were satisfied that the court could amend it’s record as proposed by the respondent, I am not satisfied that I should do so. The application made by the mother is also dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 29 January 2003