Feranti and Connor (No. 2)
[2007] FamCA 1447
•12 November 2007
FAMILY COURT OF AUSTRALIA
| FERANTI & CONNOR (NO. 2) | [2007] FamCA 1447 |
| FAMILY LAW – CONTRAVENTION PROCEEDINGS - CHILD AND PROPERTY ORDERS - SUMMARY DISMISSAL |
| Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270 Tansell and Tansell (1977) FLC 90-307 |
| APPLICANT: | Mr Feranti |
| RESPONDENT: | Ms Connor |
| FILE NUMBER: | MLF | 10368 | of | 1994 |
| DATE DELIVERED: | 12 November 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | WATT J |
| HEARING DATE: | 29, 30 June 2005 |
REPRESENTATION
| FOR THE APPLICANT: | Applicant in person |
| COUNSEL FOR THE RESPONDENT: | Mr Wood |
| SOLICITOR FOR THE RESPONDENT: | Peter Falconer & Associates |
Orders
The father’s application for contravention filed 4 February 2005 as amended by his application for contravention filed 26 April 2005 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Feranti v Connor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 10368 of 1994
| MR FERANTI |
Applicant
And
| MS CONNOR |
Respondent
REASONS FOR JUDGMENT
Introduction - summary dismissal of contravention applications
The father filed an Application – Contravention on 14 February 2005 and he later amended this application by filing an amended Application – Contravention on 26 April 2005. All references to the father’s application hereafter are to the later document.
My judgment delivered 26 October 2007 outlines the history of the hearing of the father’s application: see paragraphs 7, 8 and 9 of that judgment. In respect of the contraventions alleged in paragraphs 1 to 3 of Part D of the father’s application, that judgment states my findings on the basis of which those paragraphs will be dismissed. I will now turn to the remaining paragraphs of Part D of the father’s application being paragraphs 4 to 8. Paragraphs 1 to 3 contained allegations of contraventions of the orders of Brown J made 2 and 16 February 2004. Paragraphs 4 to 8 of the father’s application allege contraventions of orders predating Brown J’s orders.
The mother sought summary dismissal of those allegations set out in paragraphs 4 to 8 primarily on the basis that each of them amounted to an abuse of process when seen in the context of the long history of proceedings between these parties, including proceedings where the same issues had been raised and dealt with, or could and should have been raised. It can also be seen that she was asserting that these allegations lacked bona fides and were intended to cause the respondent mother expense and inconvenience. To this extent it can also be said that the mother’s case was that the alleged contraventions in respect of which she sought summary dismissal were vexatious. Submissions based on the principles of res judicata or issue estoppel (or both) might well have been available to the mother in respect of some of the contraventions alleged in paragraphs 4 to 8, but these were not argued in any detail.
The father’s opposition to summary dismissal was based, in substantial part, on his assertion that whilst there have been earlier proceedings that have dealt, in one way or another, with the same or similar issues, there has not been a contested hearing of the wife’s evidence in respect of these issues.
Affidavits
The father filed an affidavit in support of his application - described as an amended affidavit – sworn 15 April 2005. Paragraphs 11 to 38 deal with the contraventions alleged in paragraphs 4 - 8 of the father’s application. A significant part of those paragraphs consists of a history of the proceedings, by reference to documents on the court file. In so far as those paragraphs go into areas of fact beyond matters based on documents already on the court file and the history of the proceedings, I consider this summary dismissal application on the basis that those facts were true.
The mother filed an affidavit in response to the father’s affidavit sworn 28 May 2005 and filed 1 June 2005 in accordance with paragraph 3 of my order made 27 April 2005. Her response in respect of paragraphs 4 – 8 of the alleged contraventions commences at paragraph 7 of that affidavit. In the main, this part of her affidavit confines itself to the history of the proceedings with extensive references to documents on the court file. These are appropriate matters for me to have regard to, in an application such as this, being facts that are incontrovertibly part of the record and form part of the history of the proceedings. Where the mother ventures into disputed areas of fact, I have disregarded those factual allegations and accepted as true the father’s assertions and relied only on those parts of the mother’s affidavit which purport to show that the father, in paragraphs 4 – 8 is raising issues that have already been ventilated, or which he has had ample opportunity to ventilate in earlier proceedings.
Further documents provided
At the commencement of his ‘summary dismissal’ submissions Mr Wood handed up a chronology of the history of the proceedings as an aide-memoire and a folder of documents containing copies of the court file documents being relied on. These documents provided invaluable assistance in identifying the earlier proceedings, and the documents relevant to those parts of the earlier proceedings that formed the basis of the mother’s submissions for summary dismissal.
The law to be applied
There was no dispute before me that the court has power to dismiss an application that it finds to be an abuse of process. The existence of an implied power to do so was acknowledged by the Full Court of this court in Tansell and Tansell (1977) FLC 90-307, at page 76,625:
It has been held that there is an inherent power in every court to stay or dismiss actions which are frivolous or vexatious or an abuse of the process of the Court. (Norman v Mathews (1916) 85 LJKB 857 (at p 859), per Lush J and 861 per Sankey J.:Metropolitan Bank v Pooley (1885) 10 App Cas 210, 214). The clearest expression of intention to the contrary would be required before it could be held that the Family Court of Australia did not have this inherent power to stay or dismiss frivolous, vexatious or abusive proceedings.
The Family Law Rules 2004 provide, in Chapter 10 (my emphasis):
10.12 A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
…
10.14 On an application under this Part, the court may:
(a) dismiss any part of the case;
(b) decide an issue;
(c) make a final order on any issue;
(d) order a hearing about an issue or fact; or
(e) with the consent of the parties, order arbitration about the case or part of the case.
This rule clearly enables an application for summary dismissal to be brought on the grounds of abuse of process, and this is the application that the mother made through her counsel to me in this matter. As mentioned earlier, it was implicit in the mother’s submissions that these parts of the father’s application were vexatious. The principles and approach to be adopted in an application such as this was recently discussed by the Full Court in Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270..
Contraventions 4 to 8
I will now turn to the allegations. Mr Wood of counsel for the mother submitted that the allegations in paragraphs 4 to 8 of Part D should be dismissed on the basis of the material which is contained within the court file and without oral evidence, and that is how the matter proceeded.
Contravention alleged in paragraph 4
Paragraph 4 of the father’s application alleges contraventions of:
Paragraph 3 of orders made before Hase J on 10 December 1996.
During the periods of time outlined below, the respondent removed the child [T] born […] March 1995, from the State of Victoria without the prior written consent of the father or order of this court. The respondent made no attempt to comply with the requirements of the order.
(a)June 2001
(b)October 2001
(c)March 2002
(d)November 2002
(e)December 2002
(f)April 2003
(g)September 2003
(h)October 2003
(i)January 2004
Paragraph 3 of the order made by Justice Hase on 10 December 1996 provided:
That the husband and wife be restrained from removing the child from the State of Victoria without the consent in writing of the other party or Order of this Court save that the wife shall be permitted to travel to Adelaide during the period of contact suspension referred to in paragraph 2.
Paragraphs 11 to 29 of the father’s affidavit set out the facts relied on. The mother responds to this allegation in paragraph 7 of her affidavit. Paragraph 7.1 of her affidavit states “As to the dates alleged commencing in a period June 2001 and concluding in a period January 2004 I say that there was no restraint on me removing the child from Victoria”, and this was the thrust of one of the arguments developed by Mr Wood.
In the father’s applications for final orders (form 7) and interim orders (form 8) filed 29 November 1996 the father sought an interim order (but not a final order) restraining the removal of the child from Victoria.
Mr Wood submitted that the restraining order was an interim order, as can be gauged by looking at the order as a whole – the contact orders in paragraph 1 are expressed to be “until further order” and most of the interim applications (form 8’s as they were then) were dismissed. Such an interim order would merge or cease operation upon the making of final orders.
On 3 December 1999 Guest J made final parenting orders at the end of a five day trial. Those orders provided that the child reside with the mother and she have sole responsibility for the day to day and long term welfare and development of the child. Paragraph 11 of Guest J’s orders provide:
That all extant applications for residence and contact be otherwise dismissed AND THAT all previous orders relating to residence and contact made herein be discharged.
Mr Wood submitted that this in effect discharged the previous restraining order with respect to movement of the child from the State of Victoria and that by these orders that injunction was discharged and this is consistent with the mother having sole responsibility for the day to day and long term care of the child.
Mr Wood did not believe that the father sought as part of his application for final orders before Guest J that there be an ongoing injunction. If he did, that application clearly failed. In any event Mr Wood submitted that the injunction must be an order that relates to residence or contact and that it is an order caught by paragraph 11 of Guest J’s order. He further submitted that the injunction restraining movement is inconsistent with sole parental responsibility for the long term and there is nothing in Guest J’s judgment to suggest that his Honour intended the injunction to remain.
Putting it another way Mr Wood submitted that if the father’s position was correct – that the injunction remained on foot after the final orders of Guest J – that would mean that although she had the sole responsibility for long term care of the child and residence of the child she would have to seek the father’s permission each time she wished to take the child out of the State, and come back to Court if he did not give his consent. I accept that such a situation would be totally at odds with his Honour’s order and I find that even if it (the restraint) was still on foot up to the date of his Honour’s order, it can not be said to have survived beyond that order.
Prior hearings of similar allegations
Mr Wood further submitted that this issue (interstate travel in contravention of paragraph 3) has already been ventilated by the father in this court, further demonstrating that this application is an abuse of process. Mr Wood’s submission referred to the mother’s affidavit paragraphs 7.3, 7.4 and 7.5. which sets out the history of earlier unsuccessful attempts by the father to raise allegations of contravention of this same paragraph of Hase J’s order and his unsuccessful attempt to seek leave to appeal from Wilczek J’s dismissal of that application.
The father filed an ex parte form 8 application on 26 March 2002 seeking leave to file, inter alia, a form 48 contravention application in relation to orders contravened by the mother. At that time the father was subject to a section 118 order (made by Bell J on 30 August 2000). The father filed an affidavit in support of that application. The father filed a further affidavit on 12 June 2002 and that is the one he relied on when his application came before Justice Wilczek on 17 June 2002.
The matter was no longer an ex parte matter by the time it came before Justice Wilczek. Justice Carter had heard the ex parte application and ordered the father to serve his application and affidavit on the mother.
Paragraph 4.5 of that affidavit sets out alleged breaches of paragraph 3 of the orders of Justice Hase made 10 December 1996 including details of occasions when the mother is said to have taken the child out of Victoria in 2001 and 2002. The mother submits that these allegations are similar in nature to those in the application before me and in two cases may overlap as the father alleges breaches in October 2001 and March 2002 in both cases. Mr Wood submitted that that is beside the point in any event, it is the fact that the issue was raised back then also.
Justice Wilczek delivered his judgment on 2 September 2002. Paragraphs 61 and 62 specifically deal with allegations that the mother had breached the restraining order:
61.In paragraph 4.5 the issue raised by the husband are orders made by Hase J in December 1996 concerning child welfare matters and the husband alleges that those orders restrained the parties from “removing” the child [T] out of the State of Victoria. The husband’s complaint appears to be that mother has seen fit to take the child out of Victoria, thereby “repeatedly” breaching the order.
62.The mother’s response to that allegation is to, correctly in my view, describe the orders of Hase J in December 1996 as representing a determination of competing form 8 applications concerning interim residence and contact issues with the final hearing eventually heard by Guest J in December 1999.
Justice Wilczek made orders dismissing the father’s form 8 application seeking leave to file a form 48 (and form 47) against the mother and her father. His Honour made the following concluding remarks in his judgment:
85. … I have looked at the various allegations made by the husband individually, not necessarily having commented on each and every one. I have done so in the light of the history of litigation between the parties and then taken a global view in relation to the husband’s application as a whole. As to that:
(a)As to some of the matters raised by the husband, at best and put at their highest, they fall into the de minimis category or into the ‘water under the bridge’ category, ignoring that the wife appears to have a prima facie solid answer to almost everything raised by way of complaints by the husband. That is a comment that I would make if I thought the husband was bona fide in the application that he has brought.
(b)I do not consider that the husband’s application is brought bona fide. In my view, the husband is intent on causing the wife as much by way of troubles and difficulties as he can by pursing, or attempting to pursue litigation in the course of which he represents himself, well knowing that the position of the wife is such that she requires the assistance of professionals which causes her emotional and financial difficulties.
(c)I see no merit in any of the applications that the husband seeks leave to pursue, quite apart from the fact that, it seems, he has already brought similar proceedings before which have been dismissed.
(d)In many other respects, the husband seeks to agitate or re-agitate ancient issues.
The father then filed an application for leave to appeal this decision to the Full Court on 2 October 2002. The matter was heard by the Full Court on 21 October 2003 and by orders made on 19 March 2004, the Full Court dismissed the father’s application for leave to appeal.
The Full Court also dismissed the father’s application to adduce further evidence:
31.The husband sought to adduce further evidence by an affidavit sworn by him on 6 October 2003. That affidavit addresses what the husband alleges are further breaches of orders by the wife since the making of the orders that are sought to be appealed.
36.The evidence sought to be adduced by the husband relates to an allegation that, by taking the parties’ 8 year old daughter to Adelaide to visit her maternal grandmother for a weekend in October 2003, the wife had breached an order made by Hase J on 10 December 1996. Allegations of various breaches of the same order as a result of the wife taking the child on similar short family holidays were considered before the trial judge (see paragraphs 61 – 62 extracted at para 18 hereof).
Conclusion as to paragraph 4
I consider that the restraining order made by Hase J, read as part of the order made that day as a whole, was an interim order. It was made in response to an application for an interim order in circumstances where no final order was sought in like terms. If the father had wanted that interim order to continue beyond the final hearing in 1999, he would have had to seek such an order from Guest J. No document was brought to my attention to suggest that he did so. I infer that he did not. I find that the interim order therefore ceased to operate from the time of Guest J’s judgment delivered on 3 December 1999, although no formal order was made discharging it.
In so far as the mother has asserted (in correspondence to the father annexed to his affidavit), and in these proceedings, that she was not restrained from taking the child to interstate from the time of Guest J’s judgment, I consider that she was correct. Wilczek J, considering allegations of breach of the same paragraph of the same order, made the findings set out above, and the Full Court found no basis for a grant of leave to appeal.
In my view, the judgment of the Full Court to which I have made reference should have made it clear to the father that the approach taken by Wilczek J was the correct approach, that is, not to entertain allegations of contraventions of paragraph 3 of the 1996 order that occurred after Guest J’s 1999 judgment.
In the circumstances, the father’s allegations of contravention set out in paragraph 4 of Part D of his application amount, in my view, to an abuse of process. They could not succeed because the restraining order was no longer in operation. The abuse of process is particularly blatant, and vexatious, in light of the judgment of Wilczek J and the Full Court’s rejection of the husband’s application for leave to appeal from that judgment.
Contravention dismissed.
Contravention alleged in paragraph 5
Paragraph 5 of the father’s application filed 26 April 2005 states:
Paragraph 8.3 of orders made before Hase J on 10 December 1996.
In December 1996, the respondent failed to make available all of the items referred to in the schedule annexed to the orders made before Hase J on 10 December 1996. Specifically, the respondent failed to provide or make available the portable stereo system, wedding ring, half of the photograph collection and the microwave oven listed in that schedule.
Paragraphs 32 to 35 of the father’s affidavit set out the material the father relies on in relation to his allegation of contravention.
Final property orders were made by consent by Registrar Fitzgibbon on 13 August 1996. Paragraph 10(a) of those orders refers to chattels and provided that the chattels in the former matrimonial home and those stored at G were deemed to be in the possession of the mother save for the chattels listed in the Schedule attached to the orders which were deemed to be in the possession of the father. The attachment is headed “Schedule of chattels to be retained by husband”
On 27 November 1996 the mother filed a form 8 seeking, inter alia, enforcement of the final property orders. On 28 November 1996 the father filed a form 7 application seeking, inter alia, that the property orders made by the parties on 13 August 1996 be set aside pursuant to section 79A(1) of the Family Law Act. That application also set out the orders sought in substitution for the orders sought to be set aside. There is no mention of chattels in the orders sought. On 29 November 1996 the father filed a form 8 seeking, inter alia, to stay the execution of the property orders pending the determination of the father’s application. On 4 December 1996 the father filed a form 8A which sought, inter alia, the same stay order. On 9 December 1996 the father filed an amended form 8 application. Paragraphs 4 to 7 of the application concerned the stay application and other interim property relief sought by him.
The matter came before Justice Hase on 10 December 1996. By consent the property orders made 13 August 1996 were varied pursuant to section 79A(1A). Relevantly to allegation 5, paragraph 8.3 provided:
That the wife make available for collection by the husband within 14 days of the date hereof the additional item [sic] detailed in the Schedule annexed hereto and that thereafter each party be solely entitled to the exclusion of the other to all items of property in the possession of each party.
Listed in that schedule are the items - portable stereo system, wedding ring, half photo collection and microwave – that the father complains about in the contravention application before me
Paragraphs 4 to 7 of the father’s amended form 8 application filed 9 December 1996 were [otherwise] dismissed.
On 11 April 1997 the father filed an amended form 8 seeking, inter alia, the remainder of the items referred to in the schedule to the orders made 10 December 1996 that he alleged had not been made available to him. Included in the list of seven items are the four items the father has in his present application, that is the portable stereo system, wedding ring, half photograph collection and microwave. The father’s affidavit sworn 11 April 1997 and filed in support at paragraph 5.4 states that four items have been provided from the schedule to the 10 December 1996 orders and the remaining items have not been.
On 24 April 1997 the father filed another amended form 8 application in which he again seeks in paragraph 5 the remainder of the items referred to in schedule to the orders of 10 December 1996 that have not been made available. Six items are listed including the portable stereo system, half of the photograph collection, Sharp microwave oven but there is no mention of the wedding ring. The father swore an affidavit in support of his application on 24 April 1997. Paragraph 5.4 states:
5.4Family Court orders made by consent, December 10,1996, paragraph 1.3. The wife provided four of the eleven items listed in the schedule attached to those orders. The remaining items, listed in this application, have to this day still not been provided. The wife still refuses to comply with the court order.
The inference to be drawn is that the amended application filed 24 April 1997 was a further amendment to the amended form 8 filed on 11 April 1997 and crystallised the relief sought by the father. The matter came before Hase J on 16 May 1997. Paragraphs 4, 5, 6, 7 and 10 are the relevant orders made by Hase J on that day:
4.That the husband file and serve an amended form 7A response by 30th June 1997 setting out the final parenting orders he seeks in respect of the child [T].
5.That the wife be at liberty to include in her proposed amended form 7 application orders sought in like terms as to those set out in paragraphs 10, 11, 13 and 14 of her amended form 8A response filed on the 8th May 1997.
6.That the husband be at liberty to include in his amended form 7A response orders sought in like terms as those set out in paragraphs 5 and 6 of his amended form 8 application filed 24th April 1997. [There is nothing to indicate that he ever did this]
7.That otherwise the husband be and is hereby restrained from taking any further proceedings of whatsoever nature pertaining to the subject matter of the final property orders made on the 13th August 1996 and the amending orders made on the 10th December 1996.
10.That all extant form 8 applications and responses be otherwise dismissed,
The restraining order imposed by Hase J has not been discharged and the mother submitted that paragraph 7 remains on foot and the father, simply by filing any application before the court seeking any relief with respect to, or reliance on the final property orders made on 13 August and 10 December 1996, breaches the order made on 16 May 1997. I find that the father was given an opportunity (by paragraph 6 of the order of Hase J set out above) to raise the chattels issue in an amended form 7A to be filed by 30 June 1997. He did not do so and was otherwise bound by the injunction set out in paragraph 7 of the order.
Appeal from orders of Hase J
The father filed a notice of appeal to the Full Court on 14 July 1997 against the orders made 16 May 1997. Paragraph 8 of the father’s grounds of appeal asserts: “The orders unfairly prevent me from seeking compliance by the wife to prior court orders.” Paragraph 15 of the appeal states that “the presiding judge erred in failing to accept evidence that the wife is flouting Family Court orders.” That appeal was heard by the Full Court on 24 August 1998 and dismissed (save as to an unrelated issue) by judgment delivered and orders made 21 September 1998: see paragraph 4 of the orders of the Full Court made 21 September 1998.
In paragraph 22 of this judgment, I have made reference to the father’s application for leave to institute proceedings that was heard and determined by Wilczek J. In the same application, the father sought to relitigate the chattels issue. In paragraph 4.6 of his affidavit in support of his application to Wilczek J, the father states:
Paragraph 8.3 of those orders [Hase J 10 December 1996] stated that the respondent had to provide the items listed on a Schedule attached to the order. The respondent breached this order by not providing all of the items on the list. The respondent has still not provided my portable stereo system, wedding ring, one half of a photo collection and the stated microwave oven on the list. The respondent chose to throw away items rather than provide them to me.
Justice Wilczek heard the father’s application seeking leave to file and dismissed it on 2 September 2002. The history of the father’s application for leave to appeal from this order is set in paragraphs 27 and 28 of this judgment and I will not repeat them here. The Full Court dealt with the chattels issue in the following terms:
39.When asked during the hearing of the appeal what orders he was now seeking to enforce, the husband indicated that he no longer sought to enforce the order concerning the transfer of the property at [D], as that had taken place. He said he did not want to enforce the out of date procedural orders, but wanted to enforce the 1996 property orders under which he claims to have remained entitled to a portable stereo, a microwave, a wedding ring, some photographs and the like.
40.When pressed, he indicated that there was the matter of a motor car that he alleged was sold by the wife in breach of final property orders made by consent on 13 August 1996 and varied by an order of Hase J of 10 December 1996. Neither of these orders was included in the appeal papers. Apparently, intending to hand up a copy of the latter order, the husband then handed up without objection, a copy of an order made by Hase J on 16 May 1007.
41.Not only does it not mention the said motor car, it provides by paragraph 7 as follows:
“7. That otherwise the husband be, and is hereby restrained, from taking any further proceedings of whatsoever nature pertaining to the subject matter of the final property orders made on the 13th August 1996 and the amending orders made on 10 December 1996.”
42.This, we were told, was not brought to the attention of Wilczek J.
43.Not only could the wife not possibly be in breach of this order with respect to the said motor car, but further the husband has been restrained since 16 May 1997, from taking any further proceedings pertaining to the subject matter of the final property orders made on 13 August 1996.
In light of the Full Court’s affirmation of the continued operation of paragraph 7 of Hase J’s order made 16 May 1997, the father’s attempt to raise the same issues again in paragraph 5 of his application could not succeed and amounts to, in my view, another abuse of process of the most blatant kind.
Contravention dismissed.
Contravention alleged in paragraph 6
Paragraph 6 of the father’s application for contravention states:
Paragraph 10(a) of the orders made before Registrar FitzGibbon on 13 August 1996
In April 1997, the respondent disposed of a 1977 Datsun 180B sedan, owned by and registered to the applicant, [the father]. The respondent did so with the full knowledge that the vehicle did not belong to her, was not registered in her name and that she had no claim upon or right to the vehicle.
It must be remembered that the orders made on 13 August 1996 were final property orders made by consent between the parties. Paragraph 10 provided:
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these orders (the chattels in the former matrimonial home, the property at [E] and the parties’ chattels stored at [G] being deemed to be in possession of the wife save for the chattels listed in the Schedule attached there to which shall be deemed to be in the possessio of the husband);
(b) …
Once again this was an allegation that the father raised in his form 8 application filed 26 March 2002 seeking leave to issue a contravention application. His affidavit filed in support at paragraph 4.17 sets out the alleged breach in similar terms to the above paragraph 6:
The respondent breached paragraph 10 of orders made before Registrar FitzGibbon on 13 August 1996 by disposing of a motor vehicle, a 1977 Datsun 180B sedan, which I had purchased in 1981, long before meeting the respondent. The vehicle was unencumbered and was registered in my name alone.
On 10 December 1996 the parties by consent varied the property orders made on 13 August 1996. Paragraph 8.3 provided:
That the wife make available for collection by the husband within 14 days of the date hereof the additional item detailed in the Schedule annexed hereto and that thereafter each party be solely entitled to the exclusion of the other to all items of property in the possession of the other.
The Datsun motor vehicle was not listed in the Schedule. The father acknowledges in his affidavit sworn 15 April 2005 that the Datsun motor vehicle was parked at the former matrimonial home: see paragraph 37.
The mother can not therefore be in breach of paragraph 10 of the orders made 13 August 1996 in respect of this vehicle and the father has since the orders of Hase J on 16 May 1997 been restrained from taking any further proceedings of whatsoever nature pertaining to the subject of the final property orders made on 13 August 1996 and the amending orders made 10 December 1996.
The father then filed a notice of appeal to the Full Court on 14 July 1997 against the orders made 16 May 1997. Paragraph 8 of the father’s grounds of appeal states: “The orders unfairly prevent me form seeking compliance by the wife to prior court orders.” That appeal was heard by the Full Court on 24 August 1998 and dismissed by judgment delivered and orders made 21 September 1998, as set out in paragraphs 27 and 28, above.
Contravention dismissed.
Contravention alleged in paragraph 7
Paragraph 7 of the father’s contravention application states:
Paragraph 2 of orders made 3 December 1999 before Guest J
From July 2000, the respondent mother refused to or failed to provide dental treatment required by the child [T] born […] March 1995. She made no reasonable attempt to comply with the order.
Paragraph 2 of the orders made by Guest J provide:
That the wife do have the sole responsibility for the day to day care and for the long term welfare and development of the said child.
Paragraph 38(u) of the father’s affidavit sets out his complaint that the mother has breached her long term responsibility for the child by failing to provide dental care for the child since 2000. His allegations establish that the child received dental treatment whilst in his care in 2000 and early 2001.
Mr Wood referred me to the father’s application filed 26 March 2002 seeking to issue contravention proceedings against the mother and his affidavit sworn 12 June 2002 in support. In paragraph 4.24 of that affidavit the father states that the mother has breached paragraph 2 of the orders of Guest J on 3 December 1999 by failing to provide dental care that the child has required since June 2000.
As set out earlier in this judgment the father’s application was dismissed by Wilczek J on 2 September 2002 and the father’s application for leave to appeal from the orders was also dismissed by the Full Court on 19 March 2004. Justice Wilczek at paragraph 82 identifies the complaint about dental care or lack of it as one of the matters before him.
I refer to the findings of Wilczek J at paragraph 86 of his judgment and concur. I should add, however, that this allegation of contravention assumes that an order allocating sole parental responsibility to a parent in terms such as paragraph 2 of the order of Guest J includes a legal requirement to provide a particular standard of care for a child. There is nothing in the Family Law Act 1975 to support this assumption. For the purposes of the Family Law Act 1975, failure to discharge the obligations that flow from an order for sole parental responsibility may well be relevant in proceedings to vary a parenting order but the Act does not identify an objectively applicable standard of care which, if not provided by a parent, would amount to contravention of such an order. Failure to provide appropriate care for a child is dealt with by the laws of the States, not the Commonwealth. This part of the father’s application was also an abuse of process: it could not succeed, it dealt with an issue that has been raised earlier and again demonstrated the father’s unwillingness to accept rulings and judgments of this court.
Contravention dismissed.
Contravention alleged in paragraph 8
Paragraph 8 of the father’s application for contravention alleges contraventions of paragraph 5.3 of Guest J’s order:
Paragraph 5.3 of the orders made by Guest J on 3 December 1999 provide:
5.That for the purpose of giving effect to the contact regime provided:
….
5.3the wife to provide to the husband any written reports as to the academic and sporting achievements of the said child together with any significant medical condition that may arise.
Paragraph 8 of the father’s application asserts:
Paragraph 5.3 of the orders made 3 December 1999 before Guest J
In May 2002, the respondent failed to provide details of the medical condition that the child was suffering from and for which she required regular medication. Given the contact arrangements in place at that time, the child would have been required to take medication during a period of contact with the father. The respondent made no attempt at complying with the order and making the father aware of the child’s requirements.
In June 2002, the respondent failed to provide details of the results of eye testing that the child had required. Given the contact arrangements in place at that time, the child would have been required to have eyeglasses available to her during periods of contact with the father. The respondent made no attempt at complying with the order and making the father aware of the child’s requirements.
In October 2002, the respondent failed to provide details of the medical condition that the child was suffering from and for which she required medication. Given the contact arrangements in place at that time, the child would have been required to take medication during a period of contact with the father. The respondent made no attempt at complying with the order and making the father aware of the child’s requirements.
The father sets out details of his complaint at paragraphs 38(v) to(z) of his affidavit.
Mr Wood submitted that the May 2002 and June 2002 complaints were previously before the Court when the father filed his ex parte application on 26 March 2002 seeking leave to issue contravention proceedings and are set out in paragraph 4.25 of his affidavit in support sworn 12 June 2002. The outcome of those proceedings – dismissing the father’s application - have already been set out in this judgment in relation to two of the father’s current alleged contraventions.
The mother in paragraph 11.8 of her affidavit refers to the father filing a form 8 application on 12 February 2003 in which he sought, inter alia, leave to file a form 8 seeking that he be provided with details of the child’s medical conditions, results of any medical examination or test, details of any medication which the child requires and the history of any condition the child suffers from. He also sought leave to file a contravention application for the court to deal with the mother for intentionally and without reasonable excuse contravening specific issue orders of the court. The father filed an affidavit in support sworn 12 February 2003 which canvasses the same allegations that he brings before me.
This application came on an ex parte basis before Carter J on 12 February 2003 and her Honour dismissed the father’s application. Her Honour noted in her judgment delivered 12 February 2003 that this was not the first time that a similar complaint has been made by the father and that had been dealt with by Justice Wilczek on 2 September 2002.
The father appealed against the orders of Justice Wilczek. In October 2003 before the Full Court the father sought to adduce further material concerning further alleged breaches of court orders by the mother. The Full Court in its judgment of 19 March 2004 at paragraphs 31 and 32 held:
31. The husband sought to adduce further evidence by an affidavit sworn by him on 6 October 2003. That affidavit addresses what the husband alleges are further breaches of orders by the wife since the making of the orders that are sought to be appealed.
As appears earlier in this judgment, that application was dismissed along with the application for leave to appeal.
Mr Wood submitted that the father was before the Full Court ventilating the other two issues that clearly fell within the judgment of Wilczek J – the May 2002 and June 2002 alleged breaches of paragraph 5.3. He was seeking to produce further material of further breaches yet he made no mention of this alleged breach in October 2002 nor did he do so in relation to the ex parte application in February 2003 heard by Carter J. He has had the opportunity to do so, so to now seek that the court deal with this issue three years (October 2002 to June 2005) later is an abuse of process.
There is no doubt that this was an attempt to litigate a category of alleged contravention that the father had previously attempted unsuccessfully to institute before Wilczek J in 2002, and before Carter J in 2003.
Quite apart from these considerations, there is the question of what the order under consideration requires the mother to do. The wording of paragraph 5.3 is set out above. That paragraph requires the mother to provide to the father “any written reports as to … any significant medical condition that may arise (in respect of the child).” It does not, in my view require the mother to create written reports or give notification of medical conditions, and indeed, the father’s application to Carter J seems to have been aimed at curing that defect, as perceived by the father.
Looking at the paragraph as a whole, I read it as requiring the mother to provide the father with any written reports that may come into existence about any significant medical condition that may arise. Such a report might, for example be written by a medical specialist to whom the child has been referred, providing his/ her opinion as to the child’s condition to the referring general practitioner, and through the GP to the mother. If such a report identified a significant medical condition, then it would prima facie be incumbent upon the mother to provide a copy of that report to the father, and failure to do so could amount to a contravention of that part of Guest J’s order.
In my view, even if most of the matters complained about in paragraph 8 had not been raised earlier and disposed of, I am not satisfied that the facts alleged by the father disclose the existence of a written report as to a significant medical condition (of the said child) that the mother failed to provide to the father. This allegation also could not succeed, and is an abuse of process.
Contravention dismissed.
I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt
Associate:
Date: 12 November 2007
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