Diabelek and Umi

[2020] FamCA 254

FAMILY COURT OF AUSTRALIA

DIABELEK & UMI [2020] FamCA 254

FAMILY LAW – PARENTING – no appearance by applicant – defective affidavit – non-compliance with evidentiary matters – costs order appropriate on the basis that application had no prospect of success on the father’s material.

Rice & Asplund (1978) 6 Fam LR 570

APPLICANT: Mr Diabelek

RESPONDENT: Ms Umi

FILE NUMBER: MLC 987 of 2010

DATE DELIVERED: 8 April 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Wilson

HEARING DATE: 8 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Wilkinson & Associates

Orders

1. The applicant father’s application filed 25 November 2019 is dismissed.

2. If the applicant wishes to commence any further proceeding, as a condition precedent to filing any such application, the applicant must file an affidavit to which he exhibits –

   (a)hair follicle test results current within seven days of the application being filed; and

   (b)       a current report from treating psychiatrist or mental health worker.

3. Costs fixed in the sum of $1,500 are to be paid to the mother by the father

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 987 of 2010

Mr Diabelek

Applicant

And

Ms Umi

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 25 November 2019 the applicant filed an initiating application to commence this proceeding following the making of final orders by the Honourable Justice Baumann on 2 November 2018. 

2. Before putting into context the application in this proceeding, it is relevant to observe that pursuant to the orders made on 2 November 2018, Baumann J discharged all previous orders and made final orders pursuant to which his Honour prescribed a regime for the mother to have sole parental responsibility for the child and for the child to live with the mother.  Thereafter, his Honour made stipulations in those orders for the child to spend time with the paternal grandmother, but for no one else other than the mother.  In other words, the father was not mentioned as having time with the child in the final orders of 2 November 2018. 

3. That was to be contrasted with the alleged final orders made on 30 August 2010 pursuant to which by consent the father was to have supervised time with the child.  On its proper interpretation, the latter orders of 2 November 2018 supplanted the consent orders years earlier, in August 2010, with the consequence that the father had no time with the child on and from 2 November 2018.  That was the context against which this application was commenced in November 2018. 

4. In support of the application for various orders today, the father made an affidavit on 22 November 2019.  It is barely comprehensible.  Even accepting that the father’s first language may not be English it is difficult to understand the gravamen of the affidavit.  Relevantly quoting verbatim, the father said in his affidavit (with errors in the original) –

   1. Cases of mistreatment in the form of abuse at a very early age (under 1 year). 

   2. Providing false information for the perpous of statement against fathers contacts. 

   3. None compliant with previously given order by Family Court, Children Court most of the times. 

   4. Unapropriate control of child (X), practising aggrassion, physical punishment, investigating activity and conversation between father and the child befor and after each visit. 

   5. Completly disturbing most none contact visits and demanding child to provide wrong response. 

   6. Child’s academics perforance drop evidence since fathers contact been disturbed.

5. The father did not participate in this proceeding beyond making that affidavit.  He did not appear before me on 8 April 2020, whether by telephone or otherwise. 

6. On 28 February 2020, a registrar of this Court ordered that this matter be listed before me today at 10am, in relation to the Rice & Asplund[1] issue raised by the respondent mother.  The registrar required any further affidavits in relation to the mother’s application to be filed and served by 20 May 2020.  She complied.  The father did not comply with those orders, whether in whole or in part.

   [1](1978) 6 Fam LR 570.

7. On 8 April 2020, Ms Wilkinson appearing on behalf of the mother moved for orders dismissing this proceeding.  She addressed the Rice & Asplund issue by contending that no substantial change in circumstances beyond the 2 November 2018 orders had been demonstrated by the father.  She said that having regard to the paucity and unacceptable lacuna in the father’s evidence in support of his own application in this case, it was appropriate to refuse the relief sought and to do so in reliance on the fact that the requisite factors that needed to be demonstrated in accordance with Rice & Asplund had not been satisfied. 

8. I agreed.

9. In addition Ms Wilkinson requested me to make orders, which I freely do having regard to the history of this proceeding, to incorporate a provision the substance of which appears at paragraph 2 of my orders above.

10. Ms Wilkinson invited me to make an order in her client’s favour in respect of costs, despite the unlikelihood that any such costs order will be in fact paid.  It seemed to me that there was some basis for the application on the grounds that the father’s application was wholly unsuccessful.  To that, in my view, should be added, the application should not have been brought in the first place on the state of the evidence as was adduced in the affidavit to which I have quoted above.  No basis of compliance with the prescriptions of Rice & Asplund were thereby demonstrated.  The application filed at 25 November 2019 had no prospect of success whatsoever.  In those circumstances it is appropriate to make an order in favour of the mother.  Whether she is able to extract any costs to satisfy the order in her favour remains to be seen, but I make the order.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 8 April 2020.

Associate: 

Date:  20 April 2020