DJC & SJS & Child Representative

[2005] FamCA 1006

[2005] FamCA 1006

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No SA20 of 2005
AT ADELAIDE  File No ADF4779 of 2000

BETWEEN:

DJC
Appellant Father
- and -
SJS
Respondent Mother
- and -
CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  KAY, WARNICK & BOLAND JJ
DATE OF HEARING:                 10 October 2005
DATE OF JUDGMENT:             26 October 2005

APPEARANCES:  The Appellant Father in person.

The Respondent Mother in person.

Mr Bowler of Counsel, instructed by Mr G D Hemsley, Solicitor, 5/22 Grenfell Street, Adelaide, SA 5000 appeared on behalf of the child representative.

DJC & SJS
SA20 OF 2005
CORAM:  Kay, Warnick & Boland JJ
DATE OF HEARING:         10 October 2005
DATE OF JUDGMENT:     26 October 2005

Catchwords: APPEAL – VEXATIOUS LITIGANT - S118 ORDER –NATURAL JUSTICE - father’s appeal against dismissal of his application for extended interim contact to his child and against the grant of an injunction he be restrained from issuing further applications in relation to family assessments, the appointment of a children’s representative or contact unless with the prior leave of a Judge – alleged by father that the trial Judge did not give him a reasonable opportunity to be heard pursuant to the Family Law Rules 2004 – Full Court found no substance in father’s complaint that he was not heard on the point of extended contact, trial Judge properly exercised her discretion (see J v W (1999) FLC 92-858, C v C (1996) FLC 92-651) – Full Court found father not heard by trial Judge on s 118 Family Law Act 1975 order - no finding that dismissed application was vexatious or frivolous (see Rule 11.04 Family Law Rules and Bennett v Bennett (2001) FLC 93-088 at 88,593) – injunctions discharged.

1. This is an appeal against certain orders made by Murray J on 21 March 2005.  The orders, the subject matter of the appeal, provided as follows:

“2.That the husband’s application for a further assessment do stand dismissed.

3.That the husband’s application for extended contact with the child [S] born…March 1997 do stand dismissed.

…

5.That pending the final determination of these proceedings the husband be restrained and an injunction is hereby granted restraining him from issuing any further applications in relation to Family Assessments, the appointment of a Children’s Representative or contact unless with the prior leave of a Judge of this Court.

6.That the husband’s Form 2 Applications filed on 4 February 2005 and 17 February 2005 be removed from the pending list.”

1. The Notice of Appeal contained only one ground namely:

“Family Law Rules 2004 – Rule 11.04, Rule 3/ the Court must not make an order under subrule (1) unless it has given the applicant a reasonable opportunity to be heard.”

1. The appellant father sought orders from the Full Court setting aside her Honour’s orders and granting an order that he have contact with his child every second weekend from 5.00pm Friday until 5.00pm Sunday and alternate weeks of school holidays.

Background

1. According to a chronology prepared by the Child Representative the parties commenced cohabitation in 1982, married in 1989 and separated in early 1997 prior to the birth of their second child S.  They have one other child J who was born in March 1991.  After separation both children resided with their mother.

1. In June 2004 the father commenced proceedings seeking orders that both children reside with him.  The mother responded seeking an order for residence in her favour.

1. It would appear the matter came on for hearing before a Registrar in July 2004 when interim orders were made that the children reside with their mother and have contact with their father alternate Saturdays from noon until 5.00pm. 

1. On 3 August 2004 the father filed a Form 2 application seeking contact to the children.  On 31 August 2004 a Registrar made orders appointing a child representative and further ordered that if the younger child’s contact period coincided with her karate activities the contact was then to take place on Sunday rather than Saturday.

1. The father sought a judicial review of the contact orders that were made in July 2004.  That review was conducted by Burr J on 5 October 2004 who ordered that the contact to the children should take place alternate Saturdays from 2.00pm until 10.00pm.  His Honour’s order also said:

“…that it would be of enormous benefit to the Court and to the parties if the Legal Services Commission undertook all such steps as are necessary to make the appointment of the children’s representative as a matter of urgency and seek to encourage the participation of the father in the assessment process involving the children, having regard to the limitations that the present report of Ms [S] dated the 30^th September, 2004 provides because the father has not been interviewed and the father has not been observed in interaction with the children.”

1. On 20 October 2004 Ms [B] filed a Notice of Address for Service as Child Representative.

1. On 22 October 2004 the father filed a further application seeking alternate weekend contact to [S] from 5.00pm Friday to 5.00pm Sunday. 

1. Three days later, on 25 October 2004 he filed an application alleging that the mother had contravened earlier contact orders made by the Registrar on 31 August 2004 and by Burr J on 5 October 2004. The mother responded by filing an application seeking that the father be restrained from instituting further applications without leave of the Court pursuant to s 118 of the Family Law Act 1975.

1. On 18 November 2004 Registrar Kelly made a number of orders.  The Registrar noted that the father was no longer pursuing his application for residence.  She ordered by consent that the earlier contact orders be varied so that the contact was to take place each alternate Saturday from 11.00am until 7.00pm.  She otherwise adjourned the father’s application to 15 April 2005 and ordered the preparation of a “family assessment to be conducted by Mr [M], such assessment to be directed to the issue of contact”.  Registrar Kelly’s orders included a paragraph that said:

“That Mr [M] is invited to interview the mother’s partner Mr [S] in the course of the assessment and to consider interviewing Mr [S]’s two children for the purpose of the assessment (if considered necessary or appropriate by Mr [M]).”

1. The Registrar also adjourned the mother’s s 118 application to a date to be advised by the Court.

1. Dr M wrote a report on 25 January 2005.  In the report he indicated that he had interviewed the parties and the children.  It was clear from the report that he did not see the father interacting with the children.

1. On 4 February 2005 the father filed an application seeking the removal of Ms B as Child Representative. 

1. On 7 February 2005 Strickland J dismissed the mother’s s 118 application filed in November 2004 and adjourned the father’s application seeking to remove the Child Representative to a further hearing on 25 February 2005. He further ordered that the April hearing of the father’s application for alternate weekend contact be brought forward to be heard at the same time as the removal application.

1. On 11 February 2005 the mother filed a response to the father’s application of 4 February 2005 and further sought that the father be restrained from instituting any Application in a Case in the proceedings or in the alternative any application about the removal of either the Child Representative or the family assessment report of Dr M.

1. On 17 February 2005 the father again filed an application seeking an order for contact to the child S on alternate weekends from 5.00pm Friday until 5.00pm Sunday. 

1. The interim matters did not proceed before Strickland J in late February 2005 but came on for hearing before Murray J on 21 March 2005.

The hearing before Murray J

1. The matter commenced before her Honour shortly after 10.00am.  The father appeared on his own behalf.  Both the mother and the Child Representative were represented by counsel.

1. Her Honour asked what the case was about and the father replied:

“My application, your Honour, was for the removal of [Ms B] as child representative.

HER HONOUR:        That’s right.   I have that before me.

MR [C]:          The removal of Mr [M’s] report.

HER HONOUR:        Yes, and I think I have that before me as well.  That was in the subsequent application.

MR [C]:          Also a procedural hearing on the whole case.

HER HONOUR:        What do you mean by that?

MR [C]:          A procedural hearing.  I have not been given the opportunity to answer affidavits supplied to this court by my learned friend.

HER HONOUR:        I see.  I’ll hear from you about that later on.  Let’s deal with the substantive application first of all.”

1. Then her Honour noted after some discussion:

“…Then there is a response from the wife where she seeks that your application be dismissed; that it’s frivolous, vexatious or otherwise, and furthermore, the wife asks that you be declared a vexatious litigant.  All right, thank you.”

1. The father began to tell her Honour the material that he relied upon, particularly mentioning an affidavit of 17 February 2005 and an affidavit of 17 March 2005.  Counsel for the Child Representative then told her Honour that Ms B would be taking maternity leave from 15 April 2005 and would no longer be the Child Representative.  Her Honour then indicated that she would make an order for the appointment of a new Child Representative.  The father indicated that he still wished to air whatever grievances he had against the Child Representative saying:

“…Even though she’s going on maternity leave she’s still not excused in the way she has acted with malice against me as in my affidavits, your Honour.”

1. Her Honour indicated that she was not going to rule on that and then asked whether there was anything else she had to deal with in the matter apart from the vexatious question.

1. Counsel for the mother indicated that she wished to pursue her application pursuant to s 118 saying:

“…Your Honour, of course those orders would be directed to the father’s applications with respect to the removal of Mr [M] and also his more recent application, I think, dated 17 February which is an application for increased contact time.  I think that’s what Mr C means when he is talking about procedural hearings but I’m not certain.  So, your Honour, those so far as I’m aware are the matters that remain to be determined.”

1. Counsel for the mother also outlined an oral amendment to restrain the father from bringing any application with respect to contact to the children in these proceedings.

1. Her Honour was then given an outline of the matters by Ms D on behalf of the mother and that led to her Honour saying:

“…So now we’re dealing with an unusually large number of form 2 [s] and an application to have a further child assessment.  So first of all let’s deal with the application for a further child assessment.  I’ll hear you first, Ms D, and then I’ll hear Mr B.  I already know what the husband’s attitude is and that is that he has grave doubts about Mr [M’s]  impartiality.”

1. There was then some discussion about the preparedness of the matter for trial.  Both members of counsel thought it would take four or five days at most whilst Mr C said that he believed that it would take two weeks.

1. Mr C then told her Honour that he wished to address the questions of contact.  Her Honour said she would hear the contact matter and then inquired of the father to what extent he wanted the contact increased.  Mr C drew her Honour’s attention to the affidavits that he had filed, saying:

“…These are matters I have never had an opportunity to put before the court and it’s been going 12 months.”

1. Her Honour then made reference to Mr M’s report saying that S still wanted to see the father and that Mr M had recommended that her wishes be respected.

1. The report provided in paragraph 5:

“[S] presented as being ambivalent about her father, telling me that she has some good times and some bad times with him while on contact visits.  Although feeling that she was a ‘mostly happy person’, she nevertheless reported some troublesome memories of her father yelling at her mother in the past, and also reported that there were some aspects of her father’s behaviour that she found disturbing and made her feel uncomfortable.  She was clear that she wished to continue seeing her father every second weekend, but that she didn’t want to stay with him overnight.  She confirmed that she felt safe with handover being at the…police station, and expressed a preference for contact to be supervised.”

1. The father told her Honour that he wished to take issue with the report and the way it was conducted.  Her Honour said that the report seemed to be:

“…fairly even-handed and what’s more it’s not as if it’s biased against you.  It assesses you in a particular way, but that’s for the judge.”

1. The father then attempted to outline some of his complaints about the report, particularly a complaint that Dr M had access to and had relied upon a psychological report of Ms S dated 30 September 2004, a report that had been conducted entirely in the absence of the father.  It was apparently his view that the reference to Ms S’s report was evidence of “duplicitous behaviour on behalf of the Child Representative Ms [B]”.  The father however went on immediately, after his further complaints about Ms B’s behaviour, to say that he agreed with an observation of Murray J “that a new report is out of the question at this moment for the children’s safety and well being”. 

1. Her Honour then redirected the discussion back to the issues of contact with S, asking the father to draw her attention to particular paragraphs of his affidavit which he said were relevant to the question of contact with S.  Mr C drew her Honour’s attention to paragraph 2 of his affidavit filed 17 March 2005, particularly focusing on some comments that Dr M had reported that J had made on the desirability of having contact with S’s supervisor.

1. Her Honour tried to direct Mr C’s focus back to the issue that she needed to determine saying that she was not going to pay attention to those matters and said:

“…What I want to know is the evidence that you can produce which shows that although you have filed other applications I think before for weekend contact, what is happening now which makes weekend contact desirable and better for [S] rather than 11 am to 7 pm which has been in force for some time?

MR [C]:          Because [S] has stated to me that that is what she wants.”

Mr C advised her Honour that evidence was not in an affidavit.

1. After some further discussion Mr C further complained that he had made the application on four occasions and he had never been given an opportunity to be heard on it.  In particular he had never had an opportunity to address matters raised in the wife’s first affidavit asserting that he had alcoholic and psychiatric problems.

1. The father then endeavoured to persuade the trial Judge that Dr M’s report was tainted by his reliance on Ms S’s report but her Honour emphasised that Dr M’s conclusions seemed to be based on his interviews with the parties and the children rather than on somebody else’s opinion.  He concluded his report by saying:

“It is my opinion that, in order to safeguard her emotional well-being, [S]’s wishes relating to contact with her father also be respected.”

1. Her Honour then sought the views of counsel for the mother and for the child representative who supported the maintenance of the existing arrangements. 

1. Without seeking any further submissions from any of the parties relating to the s 118 application her Honour said:

“1.I have reached a conclusion in the matter.  I think I have made it very clear on the transcript that I take no note whatever of even a reference to Ms [S]’s report.  Dr [M’s] report is before me.  He as a matter of history has related that the children were interviewed by Ms [S], but the husband was not, and of course any report that does not embrace both parties and all the children has little validity as far as I am concerned and, quite properly, the…report [by Ms S] should not be before this court at any time.

2.I think this trial should be expedited, and I will dictate my orders towards the end of my remarks.”

1. Her Honour then formally noted that Ms B would be on maternity leave and will no longer be acting as the Child Representative and then made the orders the subject matter of this appeal.

The appeal

Order 2 – the further assessment

1. The appeal against the dismissal of the father’s application for a further family assessment by somebody other than Dr M was not actively pursued before us, the appellant conceding that he had agreed with her Honour that it would be inappropriate for a further assessment to be required.  He made that concession, however, without retreating from his primary submission to the trial Judge that the assessment was inadequate in that Dr M had not observed him interacting with the children.  We accepted the concession on the basis that it would not prejudice him from renewing his application for a further or updated assessment once a trial date became fixed in the matter.

1. One of Murray J’s orders was that the trial of the proceedings be specially managed and expedited in hearing.  We were informed from the Bar table that a pre-trial conference is likely to be held in December and the matter could be fixed for hearing in March or April of 2006.  If the Registrar conducting the pre-trial conference is of the view that further or updated assessment is required then an order can no doubt be made at that time for the preparation of such a report.  If the trial Judge is ultimately of the view that there are sufficient shortcomings in the assessment and that a further assessment ought to be required no doubt that could be a matter of further discussion at the trial.

1. For our purposes, given the concessions made by the appellant before the trial Judge and before us, there is clearly no appealable ground open to the father in his complaint that Murray J erred in dismissing his application for a further assessment.

Orders 3 and 6 - the contact application

1. The substantive proceedings awaiting trial in this action involve the determination of an appropriate regime of contact to be put in place between the father and the child S.  The father’s application is for alternate weekend contact Friday evening until Sunday evening and for alternate weeks of school holidays.  The mother’s material does not spell out precisely what contact she would submit is appropriate on a long term basis.  Counsel for the mother and for the Child Representative each indicated that it could take up to four or five days of court time for the matter to be heard whilst the father indicated that he thought the proceedings could last two weeks.  The nature of the relationship between the father and the children and the appropriateness or otherwise of extended overnight contact in the circumstances was a matter very much in dispute.  The mother’s material sworn in July 2004 asserted that the father had an alcohol problem, had a history of psychiatric instability, had come to her home uninvited on many occasions and was becoming increasingly argumentative. 

1. For his part the father denied the mother’s allegations asserting that she was:

“unpredictable, emotional, autocratic and domineering and of a dishonest nature…and was causing emotional harm to the children by her inability to control herself.”

1. In March 2005 Murray J was confronted in an interim hearing list with an application where the matters in issue were very much in dispute.  There was an existing sequence of orders dating back to July 2004 that saw contact taking place only on each alternate Saturday.  There was an untested family report asserting that the wishes of the child S were to continue the existing arrangement and that it would be contrary to her best interests to make an order that conflicted with the child’s wishes.  The father was invited by the trial Judge to point to the material that he said would support his application to change that existing arrangement pending the further hearing and determination of the proceedings.  He was given every opportunity to do so and in our view there is no substance in his complaint that her Honour failed to provide him an adequate opportunity to address the matters that related to contact.

1. A parent anxious to spend time with their child may well feel a sense of grievance about the manner in which these issues are dealt with on an interim basis.  One party makes a series of allegations which may or may not turn out to be capable of being substantiated when properly investigated at the final hearing.  Generally on an interim hearing the judge endeavours to base the decision upon matters which are not controversial and to frame the orders having regard to those matters. 

1. The authorities on the proper approach to be adopted in these circumstances are well settled.  They are conveniently discussed by the Full Court in J v W (1999) FLC 92-858; 25 Fam LR 299 where the Full Court said:

“45. Orders dealing with whom a child is to live and contact between a child and another person are ‘parenting’ orders and as such are governed by the provisions of s 65E of the Family Law Act, namely that they are to be determined by the Court regarding the best interests of the child as the paramount consideration. Section 68F sets out the criteria that the Court must consider when determining what is in a child's best interests. In an interlocutory hearing, where many of the issues remain in contest and there is no proper opportunity available to determine contested issues of fact or to make assessments of the parties themselves by observation of them whilst they give evidence and otherwise, the court is necessarily restricted in the manner in which it can give proper consideration to s 68F(2) requirements. The appropriate approach to be taken in such circumstances was recently extensively discussed by the Full Court in the decision of Cowling (1998) FLC ¶ 92-801. In Cowling Ellis, Lindenmayer and Jordan JJ said at (1998) FLC ¶ 92-801 (p 85,005-85,007):

…

‘17. The procedure to be adopted at the hearing of an application for an interim residence order was considered by this Court in D and Y (1995) FLC ¶92-581 and C and C (supra). We agree with the conclusions reached by their Honours in both authorities for the reasons which they gave.

18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long-term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.

19. Having regard to the earlier authorities of the Court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows:—

20. Firstly, having regard to the provisions of s 65E, in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration.

21. Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.

22. Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child's stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary. Such indications would include but are not limited to convincing proof that the child's welfare would be really endangered by his/her remaining in that environment.

23. Fourthly, the Court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the court to take account of the circumstances giving rise to the current status quo. In particular, the Court may examine the following issues:—

• whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.

• whether the current arrangements have been unilaterally imposed by one party upon the other.

• the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.

24. Fifthly, where the evidence does not establish that at the date of hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s 68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child's best interests. In undertaking that evaluation regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (supra).

25. Finally in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:

• the wishes, age and level of maturity of the child.

• the current and proposed arrangements for the day to day care of the child.

• the period during which the child has lived in the environment.

• whether the child has any siblings and where they reside.

• the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.

• the educational needs of the child.’

46. In C and C (1996) FLC ¶92-651; (1995) 20 Fam LR 24 the Full Court upheld the right of a trial Judge hearing an interlocutory proceeding to limit the time available for the proceeding and the mode in which proceedings are conducted. The Full Court said at FLC p 82,674 that such an approach:

‘should be encouraged if the Court is to efficiently conduct its business and that of its litigants.’”

1. In our view the conduct of the trial Judge at the hearing of the further interim applications by the father for extended contact to the child S complied with the requirements of the authorities and on the material before her Honour, reflected a proper exercise of her Honour’s discretion. 

Order 5 - the s 118 order

1. It is clear that this order was made by her Honour without giving the father an opportunity to be heard on it.  In those circumstances we indicated to the father at the commencement of the appeal that if we were still concerned about the possibility of the order being a proper one we would invite him to address us on why it would be inappropriate for the order to be made by us. 

1. However, it became apparent during the course of discussion that were we invited to make a further order we could not do so. Section 118(1) provides:

“(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

(a)      dismiss the proceedings;

(b)make such order as to costs as the court considers just; and

(c)if the court considers appropriate, on the application of a party to the proceedings - order that the person who instituted the proceedings  shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;

and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.”

1. Rule 11.04 of the Family Law Rules provides:

“11.04 Frivolous or vexatious case

(1)      If the court is satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:

(a)      dismiss the applicant’s application; and

(b)order that the applicant may not, without the court’s permission, file or continue an application.

(2)      The court may make an order under subrule (1):

(a)      on its own initiative; or

(b)      on the application of:

(i)        a party;

(ii)for the Family Court of Australia — a Registry Manager; or

(iii)for the Family Court of a State — the Executive   Officer.

(3)      The court must not make an order under subrule (1) unless it has given the applicant a reasonable opportunity to be heard.”

1. It can be seen that as a necessary condition precedent to making any order under s 118 or Rule 11.04 restraining a party from filing or continuing an application it is necessary for the Court first to determine that there are proceedings before it which are frivolous or vexatious and to dismiss those proceedings before then making the order restraining the commencement of further proceedings.

1. There was, in the proceedings before Murray J no finding that the father’s application to:

   (a)     remove the child representative;

   (b)     obtain a further family assessment;

   (c)     expand the interim contact arrangements

was either vexatious or frivolous. Absent any such finding it would be inappropriate to make any order under s 118 or under Rule 11.04. It is clear the parliament has provided in s 118 a clear legislative framework of circumstances in which the Court may order a person shall not file further proceedings without the leave of the Court which were not satisfied in this instance (see Bennett v Bennett (2001) FLC 93-088 at 88,593. Given the manner in which the application was framed before Murray J it is unnecessary for us to enter into consideration of the extent of the Court’s inherent powers to make such orders (see Vlug v Poulos (1997) FLC 92-778, (1997) 141 FLR 244; (1997) 22 Fam LR 324 and the cases therein referred to).

1. In the circumstances we propose to allow the appeal in part. 

1. The orders of the Court will be

1.      That the appeal be allowed.

2.      That Order 5 of the orders made by the Honourable Justice Murray on 21 March 2005 be set aside.

3.      That the appeal be otherwise dismissed.

I certify that the 56 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate