Darwin and Darwin (No. 2)

[2008] FamCA 889

FAMILY COURT OF AUSTRALIA

DARWIN & DARWIN (NO. 2) [2008] FamCA 889

FAMILY LAW – PRACTICE AND PROCEDURE – s 118 Order

APPLICANT: Mr Darwin

RESPONDENT: Ms Darwin

FILE NUMBER: NCC 2444 of 2007

DATE DELIVERED: 3 October 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cohen J

HEARING DATE: 3 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Duane

SOLICITOR FOR THE RESPONDENT:

Orders

1. That Mr Darwin, the father, is hereby restrained from filing any further application seeking parenting orders for the child born … August 2002 without leave of this Court.

IT IS NOTED that publication of this judgment under the pseudonym Darwin & Darwin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2444  of 2007

MR DARWIN

Applicant

And

MS DARWIN

Respondent

REASONS FOR JUDGMENT

1. In this matter the wife has made an application pursuant to s 118 of the Family Law Act for an order that the husband not be permitted, without leave of a Court having jurisdiction under the Act to institute proceedings under the Act in relation to the parties' child, born in August 2002, without leave.

2. The circumstances in which this application is made are not very complicated. The parties married in March 1999 and the child was born three and a half years later.  The parties separated a little over two months after her birth.  In 2002 the father commenced apprehended violence proceedings against the mother but later withdrew them.  In 2003 the father filed an application for contravention and the mother was served with that application by a sheriff.  The contravention application was entirely baseless because there had been, to that time, no parenting orders. 

3. On 20 August 2004 the mother filed an application for divorce.  When the matter came on for hearing the father appeared and opposed the divorce. The matter was transferred to a Federal Magistrate. The father made no further objection and the divorce was granted.  On 1 June 2006 the father commenced parenting proceedings in the Federal Magistrates Court. By 10 May 2007 an expert's report had been prepared.  One of its recommendations was that the father have psychiatric assessment. 

4. The matter was soon transferred to the Family Court of Australia.  When it came before a Registrar for directions on 20 August 2007 the father indicated his refusal to have psychiatric assessment and said he would not continue with the proceedings and two days later filed a notice of discontinuance.  As a result of that the matter was listed on 10 December 2007 before a Judicial Registrar for an undefended parenting hearing. On that day the father appeared and was granted leave to file a further application for children's orders.  He filed a notice of address for service in this matter on the same date. 

5. That notice of address for service has some importance.  It indicates that his address for service is N Street.  On 22 January 2008 the father filed what is entitled an amended application for children's orders.  It discloses the same address.

6. When the matter was, as a result, listed before me for the first day of a less adversarial hearing, the mother applied for the father to have a further psychiatric assessment in accordance with the recommendations made by Dr R who was the expert who provided the earlier report. The father indicated on that occasion that he would not attend such assessment and withdrew his applications which were then dismissed. The mother's application for an injunction under s.118 had already been filed, so that application was stood over to a date to be fixed. The matter was dealt with by Mullane J in Chamber on 23 July 2008. On that day he made an order which gave the mother until 13 August 2008 to make a written request to the Registry Manager to list her amended response which was the response which contained the application under s 118 for a further one hour undefended hearing before me.

7. By letter dated 4 August 2008 sent to the father at N Street, the Court attempted to advise the father that the matter now had been placed in the duty list before me on 3 October 2008 at 10.30.  The letter has been returned to the Court with a tick on the return to sender sticker which indicates “left address or address unknown” on it. There has been no fresh notice of address for service.  The mother does not know where the father lives.  It is quite clear to me that either the father is still living at the address where the letter was sent and has had the letter returned in an attempt to evade service, or no longer lives at that address and has not advised the Court of his change in address. It puts the mother in a very difficult position. 

8. Although the matter was listed before me as an undefended matter and the issue of service is of less significance, what is of significance in relation to whether or not the father has proper notice of these proceedings, what is of significance is that his address is not known by the Court or the mother.  It seems to me that the father's actions in habitually bringing applications, even though there has not been a large number of them, in failing to prosecute them together with his refusal to submit himself for psychiatric examination and his failure to file a proper notice of address for service or, in the alternative, his evasion or attempted evasion of service, when taken altogether amount to a situation that the proceedings which have so far been commenced by the father have created a situation which, for the mother, is a cause of embarrassment, annoyance and irritation and have been intended by the father to do so in the light of his refusal to pursue them and consent to the psychiatric examination, something which inhibits the mother’s ability to defend actions he institutes.

9. In addition, his applications have in no instance, for the same reasons as I have already referred to, been worthy of serious consideration. Accordingly the proceedings which have been before the Court are frivolous and vexatious. In the circumstances the situation which the Court and the mother are in is that without an order pursuant to s.118 of the Act there is a high level of likelihood that the father will repeat what he has done in the past in the same proceedings.

10. In all of the circumstances that if he was to do so it would be highly vexatious and frivolous of him and in those circumstances I ought to make an order pursuant to s 118 of the Act and shall do so.

11. In addition, this man has been said by a psychiatrist to, at least, need further psychiatric assessment.  He has refused to have it. Such refusal makes any proceedings he might commence vexatious and frivolous. To me that is a sufficient reason on its own to regard it as appropriate that he should not be entitled to commence proceedings without having the psychiatric assessment and that he should be prevented from being able to make further applications without leave of the Court. .

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date: