Ferreday & Layh
[2021] FamCA 648
•28 September 2021
FAMILY COURT OF AUSTRALIA
Ferreday & Layh [2021] FamCA 648
File number(s): ADC 122 of 2015 Judgment of: BERMAN J Date of judgment: 28 July 2021 Catchwords: FAMILY LAW – CHILDREN – Best interests – Where final parenting orders were made in 2018 – Where the father has initiated proceedings – Where the mother seeks that the father’s application be dismissed – Consideration of the rule in Rice & Asplund (1979) FLC 90-725 – Discussion of an application to strike out a party’s proceedings – Whether there has been a significant change in circumstances causing the Court to reopen or re-enliven the proceedings - Where there is very little evidence in support of the orders sought by the father – Initiating Application dismissed. Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 45A, 69ZN
Family Law Rules 2004 (Cth) r 15.13
Cases cited: Carriel & Lendrum (2015) FLC 93-640
Freeman & Freeman (1987) FLC 91-857
Marsden & Winch (2009) 42 Fam LR 1
McEnearney & McEnearney (1980) FLC 90-866
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Searson & Searson (2017) FLC 93-788
Number of paragraphs: 51 Date of hearing: 28 July 2021 Place: Adelaide Solicitor for the Applicant: Self Represented Counsel for the Respondent: Ms Poetsch Solicitor for the Respondent: Southern Community Justice Centre ORDERS
ADC 122 of 2015 BETWEEN: MR FERREDAY
ApplicantAND: MS LAYH
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
28 JULY 2021
THE COURT ORDERS THAT:
1.The Initiating Application filed on 17 March 2021 and the Amended Initiating Application filed 26 July 2021 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferreday & Layh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BERMAN J
By Initiating Application filed 17 March 2021, Mr Ferreday (“the father”) seeks by way of final orders that the child X born in 2008 (“the child”) be forthwith returned to the C Town School. In addition, the father also sought that:
The Parenting and Child affecting orders of 24/8/2018 be discharged or relevantly modified to facilitate reduction of secret Abusive suffering for X and a reasonable potential establishment of her Mental Health, Well-being and self‑determining develop[pment.[1]
(As per the original)
[1] Initiating Application filed 17 March 2021, page 2, paragraph 2.
Proposed order 3 sought that the child be allowed to return to schooling in the district:
…of her until now life residence at C Town Primary School with the previously stated intention of continuing her Secondary Schooling in this district as has been a Ferreday family excellent schooling tradition and is in the district of X’s HOME OWNERSHIP.[2]
(As per the original)
[2] Ibid paragraph 3.
The balance of the orders sought are difficult to comprehend but refer to an application by the father:
…to provide X with the LEGAL RESPONSIBILITY of her Father and his Protection in face of both her secret and VERY VISIBLE impositions of suffering.[3]
(As per the original)
[3] Ibid paragraph 4.
The remainder of the orders are similar in nature, although a further order sought that the child be able to obtain psychiatric or psychological assistance in circumstances where the father contends that he needs to be able to address care for the child’s:
…Mental Health, Well-being, Fraught Dual IDENTITY, dissociative forces upon her, MELTDOWNS, irrational outbursts and psychological emotional assistance to her in a normal range of Legal Paternal Responsibilities.[4]
(As per the original)
[4] Ibid paragraph 6.
The orders suggest that the requirement, according to the father, for the child to have reinstated the assistance of a psychologist is:
…in recognition that X has been taken to Police to LIE and say her Father will KILL her … as clear EVIDENCE of her Mental Health issues hidden by extreme impositions of secrecy under secret threats of rejection by her mother.[5]
(As per the original)
[5] Ibid paragraph 7(a).
Relevant to the final orders sought are the urgent interim orders to return the child to C Town School forthwith. The Initiating Application was supported by affidavit and the proceedings came before a Registrar on 18 May 2021.
The orders made by the Registrar are relevant to the current proceedings and contain a notation acknowledging that the solicitor who appeared on behalf of Ms Layh (“the mother”), foreshadowed that there would be an application seeking the father’s proceedings be dismissed by application of the principle in Rice & Asplund (1979) FLC 90-725. The mother was required to file and serve a Response to Initiating Application and the matter was then sent on a pathway leading to judicial determination. The mother complied with the Registrar’s orders and filed a response and an affidavit in support on 16 June 2021. The orders sought in the response in terms of final relief are as follows:
1. That Orders dated 24 August 2018 do continue.
2. That the Initiating Application filed 12 March 2021 be dismissed.
3. That the [father] pay the [mother’s] costs of and incidental to the proceedings.[6]
[6] Response to Initiating Application filed 16 June 2021, page 4.
In particular, the interim orders sought opposed the order of the father that the child be returned to the C Town Primary School and requested that the proceedings be listed for argument seeking dismissal of the application. The matter came before me on 28 June 2021. The father appeared in person, the mother was represented by her solicitor. Further consideration of the father’s Initiating Application and the response was listed for hearing today, and a further order was made that the affidavit tendered by the father that day and sworn on 21 June 2021 be struck out in its entirety. For reasons that were given on the last occasion, the Court determined that by regard to r 15.13 of the Family Law Rules 2004 (Cth) (“the Rules”), the affidavit should be struck out on the basis that it was inadmissible, irrelevant, unnecessarily long and of importance, that it was scandalous or argumentative.
Presumably as a result of that order or in response to it, the father filed what I will describe as an Amended Initiating Application and an affidavit in support on 26 July 2021. The amendments to the final orders sought do not assist in the better comprehension of what it is that the father seeks but rather add to what can only be described as a level of confusion and uncertainty. I should also say that over and above the manner in which the orders are crafted by the father, the amended document seeks to underline aspects of the orders presumably because the father considers that they are important and relevant and need to be the subject of highlighting lest the Court not bring to account what the father considers are important issues.
As an example, in order 2 the father underlines the words:
…reduction of secret Abusive suffering for X and a reasonable potential establishment of her Mental Health, Well-being and self‑determining develo[pment.[7]
(As per the original)
[7] Amended Initiating Application filed 26 July 2021, page 2.
In order 4, the following words are underlined:
…in face of both her secret and VERY VISIBLE imposition of suffering.[8]
(As per the original)
[8] Ibid.
Importantly, there has been the addition of a new order:
8.Leave be granted to nominate orders formed under this intended CHILD FIRST ORDERS and that there be a Court ordered REVIEW of existing orders of 24/8/2018 or since to make adjustments in X’s best interests with open and EQUAL access and time with her parents.
(a)This is to begin with alternate Fridays with her Father and her moving open free or shared access at need on Saturdays to either or both of her Parents.
(As per the original)
The Amended Initiating Application does not interfere significantly with what I contend to be the primary issue, namely the father’s application that the child be returned to the C Town School and the interim order sought, again, that the child be returned to the school. The mother’s application is to strike out the father’s Amended Initiating Application both as to final and interim orders sought. The basis upon which such an outcome is sought is by the application of what has been commonly referred to as the principle in Rice & Asplund (supra). The mother’s counsel relies upon the principles as set out in Rice & Asplund (supra) per Evatt CJ at 78,905:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
(Citations omitted).
The question that then needs to be asked is whether the principles in Rice & Asplund (supra) should apply to prevent the father pursuing orders in respect of the child. In Freeman & Freeman (1987) FLC 91-857 Strauss J said at 76,470 to 76,471:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. … The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the orders made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. … Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
Similar matters were expressed by Warnick J in SPS & PLS (2008) FLC 93-363 (“SPS & PLS”) where his Honour observed and sought to provide some better clarity as to the magnitude of the change in circumstances that would justify a rehearing. His Honour said at [81] as follows:
Thus, in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child is not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In McEnearney & McEnearney (1980) FLC 90-866 Nygh J considered the application of what was then the recent decision of Rice & Asplund (supra). His Honour said at 75,499:
Having said that I would hasten to add that the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
It is axiomatic that the test in respect of an application seeking to apply the rule in Rice & Asplund (supra) be the best interests principle.
In the decision of Searson & Searson (2017) FLC 93-788 (“Searson”), the Full Court considered the application of the rule in Rice & Asplund (supra) and the decision by Warnick J in SPS & PLS (supra). At 77,458 their Honours approved of the following remarks of the Full Court in Marsden & Winch (2009) 42 Fam LR 1 at [57] and [58]:
Adapting the language used by Warnick J in SPS and PLS ... the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking upon a hearing?
And at [58] the following is said:
That question might be better formulated in another way in the following proposition, namely, that there is a requirement:
(1) for a prima facie case of changed circumstance to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking upon a hearing.
In the decision of Carriel & Lendrum (2015) FLC 93-640 the Full Court said at 80,173:
57.In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) details the principles for conducting child-related proceedings and is relevant to the exercise of judicial discretion. The following principles in s 69ZN are of relevance:
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
The orders sought by the father in his application have as their focus the final orders made on 24 August 2018 following an eight day hearing in June and July of that year.[9] It is also uncontroversial that the father has railed against the orders made on 24 August 2018 and that there has been numerous applications and appeals in respect of those orders. It is without any pride that it is observed the father has been unsuccessful in his various challenges to the final orders. It is a relevant consideration in the terms of these proceedings that it is not only the focus that the father has in respect of his desire that the child return to school at C Town Primary School, but the other final orders he seeks can only be interpreted as orders that go not just to the issue of where the child should be schooled but rather to the father’s concern as to the appropriateness of the final orders.
[9] See Ferreday & Layh [2018] FamCA 646.
The orders provided for the mother to have sole parental responsibility for the child. The child’s care was effectively shared as between the parties. The orders, for reasons that will become apparent, were designed to ensure that as far as was possible the child’s handover between the parties, pursuant to the orders, was to occur to and from the child’s school. The orders provided for each party to be restrained:
(a) From participating in school activities or attending at the child’s school on those days that the child is in the other parent’s care save as to school concerts, parent/teacher interviews, graduation ceremonies or sports days;
(b) From discussing these proceedings or the contents of any documents filed in the proceedings with or in the presence or hearing of the child or permitting any other person to do so.[10]
[10] Orders made 24 August 2018, order 8.
Specifically, order 9 restrained the father:
(a)From arranging or facilitating the attendance of the child upon Dr D or any mental health provider, psychologist, psychiatrist, social worker, counsellor, therapist or other similar health practitioner without the prior written consent of the wife; and
(b) From arranging or facilitating the attendance of the child upon any general medical practitioner or general medical practice without the prior written consent of the wife.[11]
[11] Orders made 24 August 2018.
The orders also contained orders in respect of settlement of property, and it is a relevant consideration that those orders were made in circumstances where the father chose to not engage in the proceedings.
I do not propose to go through the reasons for judgment in detail, and I consider that the background to the matter, at least as at the date of judgment, is adequately set out in paragraphs 24 to 39 inclusive.[12] There are some matters, however, that again arise in that judgment and are relevant to the current proceedings. The first is what I may refer to as matters of practice and procedure. Paragraph 44 of the judgment refers to ex tempore reasons for judgment delivered on 1 December 2017 where there was mention made of the affidavit material relied upon by the father, quoting from the reasons for judgment as follows:
12.The affidavit material is not responsive to the issues, either is again incomprehensible and unintelligible. Regard must be had to r 15.13 of the rules of this Court, where the Court may order material to be struck out of an affidavit if the material is inadmissible, unnecessary, irrelevant, unreasonably long, scandalous, argumentative or sets out the opinion of a person who is not qualified to give it.
13.I consider that the affidavit material is contrary to the purpose of the rules and whilst there has been no application to strike it out, I consider that the material presented is inadmissible either in whole or in part, is clearly unnecessary, the majority of it is irrelevant, is unreasonably long, mischievous in its content and scandalous in its focus.
[12] See Ferreday & Layh [2018] FamCA 646.
At the first day of hearing, the father was reminded of those earlier remarks and was urged to take whatever steps may be necessary to ensure that the Court was better able to understand the orders that he intended to seek. Again, the need for affidavit material to satisfy the requirements of the Rules does not end simply with the consideration of r 15.13 and the striking out of objectionable information but also has a focus in respect of s 135 of the Evidence Act 1995 (Cth) but also in respect of s 45A of the Act, which came about as a result of an insertion to the Act by the Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth) and applicable to proceedings instituted before or after 1 September 2018.
The purpose of section 45A is to enable the Court to better consider whether an application to strike out a party’s proceedings, whether they be applicant or respondent, is more clearly stated. Under the heading of “No reasonable prospect of successfully defending proceedings”, s 45A(1) provides as follows:
The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
To determine when there is no reasonable prospect of success, s 45A(3) of the Act provides that the test is not any longer to be either that the application is hopeless or is bound to fail before a Court could decide that it has no reasonable prospect of success. Section 45A(4) of the Act provides that:
The court may dismiss all or part of proceedings … if [the Court] is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
I have listened carefully to the submissions of the father and, in particular, that they emanate not just from the orders that he seeks but rather from his affidavit filed 26 July 2021.
The father acknowledges that the matters contained in the affidavit are unlikely to be responsive to the issues that the Court considers are relevant because he says that what the Court misses is that the interests of the child are being overlooked and that the conduct of the Court is, in and of itself, abusive to the child. That aspect of the father’s submissions have been ventilated before, but it is further pursued by reference to a document of 116 pages, which are annexures to the affidavit. In particular, annexure JF6 refers to the 23 matters that the father contends represents Court abuse of the child. I do not ignore any allegation or assertion by a party that the Court or the Court’s process has the potential to be abusive to the child.
Indeed, whilst not the focus of the father’s presentation, it may be said that he has not found the needle but rather has identified the haystack. If one takes the matters raised by the father to their logical conclusion, there is some symmetry with the matters raised by the father, although with an entirely different emphasis, and the concern expressed by the Full Court in various decisions, commencing with Rice & Asplund (supra), that ongoing and unrelenting litigation has the very real prospect of being abusive to the child. It is axiomatic, but I would have thought would not confound the common sense of all who set foot in this place, that ongoing litigation is unlikely ever to be in the interests of the child or children.
It is why the rule in Rice & Asplund (supra) requires a high bar before a Court can consider that a child should be subject to further litigation. It is again obvious and apparent in this case that the child has been mired in ongoing litigation since 2015. The consequence of success of the father’s application would see this child further engage in litigation for what could be the next two years or longer. I have given, again, careful consideration to the affidavit filed in support of the father’s application, and the difficulty I have is, unfortunately, a common complaint in terms of the father’s material, that is, there is very little in the affidavit, if anything, that might be considered as evidence and, therefore, evidence in support of the orders that the father seeks. The content restates his own belief, view, argument and supposition.
There are some 56 pages of what at times might be considered invective remarks and comments, and the frequent focus appears to be his belief that the mother is a person who cannot be trusted and has set out upon a campaign to obfuscate the truth and to abuse the child, either deliberately or by neglect. In terms of the only aspect of the affidavit which has a connection to the orders that the father seeks, it appears on page 10 of the affidavit as follows:
(ix)The essence of the 16/6 Document is seen by what does it achieve for X?
*The answer is only to cover-up what is BLATANTLY BAD in GREAT PAIN!
*It attempts to cover-up X being ripped from her school suddenly and pre-emptively in PAIN that has to be HIDDEN and this ripping is from a school she has LOVED for 7 years … and which LOVES HER … with a whole cohort of teachers, kids parents and FRIENDS!!!... that are in need to ACCOMPANY her HAPPILY in her LIFE’S DESTINY!!! … as has occurred for her sisters and brothers including naturally on through GG High!
(As per the original)
Whilst on page 10, the mother’s counsel highlights a further matter that relates to what the father considers is the motivation for the mother’s change of schools as follows:
(h)X’s DEEP PAIN, FEAR and ANGER includes my failure to help to ‘control’ her mother and including in this SCHOOL CHANGE matter
* and TRUST is shown in her PAIN being OKAY to be EXPRESSED to me.
*when NONE of us could ever TRUST her mother …as many thousands of times proved including by nearly every event relating to her in X’s life..[13]
(As per the original)
[13] Affidavit of the father filed 26 July 2021, page 10.
Despite my best endeavours and doing the best that I can, I could not find any other paragraphs that might be considered even tangentially relevant to the orders that the father seeks.
The mother relies upon an affidavit filed 16 June 2021. It confirms that she made a decision that she would alter the child’s school from C Town Primary School to City JJ Primary School arising from her purchase of a property in the City JJ area. The mother makes the point that the father was aware of her desire to leave the C Town area and that she would be purchasing a home somewhere in the City JJ area. The mother admits that she did not discuss with the father or foreshadow that this may necessitate or that it was her intention for the child to leave C Town and attend at City JJ Primary School. The father concedes that he was aware of the mother’s intention to change schools.
There is no suggestion by the father that the mother’s conduct or actions were malicious or were intended to in some way cause difficulty, distress or inconvenience to the father as such, but rather, given that she purchased a home in City JJ, it was reasonable that she consider a change in schooling. A secondary issue in relation to the schooling issue is not simply that the child should return to the C Town Primary School but rather the assumption that if that occurs then it will be axiomatic that the child will progress to GG High School. That is not in any way an automatic assumption. There is nothing, again, in the affidavit material which refers to GG High School other than the broad assertion from the history of the matter that the father and other children may well have attended at GG High School.
At paragraph 27 of her affidavit, the mother says:
As to paragraph 5 I say that I wrote “I would like to enrol X to City JJ Primary School” and I hoped he could understand my decision. I understand that this was a decision I was not required to consult with or obtain the father’s permission. I viewed the father’s response to my email as patronising.
The orders sought by the father fall into two parts. The first relates to the specific issue of City JJ Primary School and C Town Primary School, and the second relates to the general discontent of the father with the orders made on 24 August 2018 but in particular, the orders of restraint that prevent the father from attending at the child’s school when the child is not in his care.
The mother has tendered a document, being a semester one report dated July 2021, penned by Ms KK who is the child’s class teacher and signed off by Mr MM, the principal of the City JJ Primary School. I do not propose to refer at length to the report, but I note the matters raised in the general and student comments. It does not suggest that the child is either unhappy at her new school nor does it point to the father’s concerns that the child presents to him with high anxiety, distress and upset such that the father contends that this child should re-engage in psychological, psychiatric or some sort of therapeutic counselling approach. The report, being a semester one report July 2021, will be exhibit “1” in the proceedings.
I return to the judgment of 24 August 2018. It is relevant to my determination of the proceedings today to highlight some of the aspects of the father’s presentation. At [170] I found that the risk to the child arises from the father’s apparent inability to accept that his belief, whilst perhaps genuinely held, is entirely without foundation. That relates to the father’s allegation that the mother had subjected the child to sexual abuse either directly or by acquiescing to the conduct of the child’s stepbrother in relation to the father’s assertion that he engaged the child for his sexual gratification. The order of injunction was necessitated by a finding at [206] that the child was being presented for unnecessary medical or other examination and assessment. There remained a risk that unless appropriate orders were put in place the conduct would continue. The wife’s application was supported by the independent children’s lawyer. That related to the application of the mother for an order for sole parental responsibility.
The question then remains whether the circumstances in which this child now finds herself, understanding that the test must always be focused on the best interests of the child as the paramount consideration, has undergone a significant change in circumstances that was not foreseeable or unreasonable, or so disruptive to the child that it would cause the Court to find that it is a proper basis for the Court to reopen or re-enliven the proceedings.
So that there is no doubt, I consider that all of the other orders sought by the father, other than the issue of matters relating to this child’s schooling, should be struck out. They are difficult to understand, they are vexatious and frivolous and would, in any event, constitute a rehearing of the proceedings. The focus then must be upon what I consider to be the only possible basis for the father’s application, which is the issue relating to the child’s removal from C Town Primary School and enrolment in the City JJ Primary School. The child has been at this school now for some months. The Court is obliged to consider all of the circumstances of this case, and a significant issue is that this will be the child’s last year in primary school and that what remains of the school year is the balance of term three and then term four, when the child will then graduate.
I consider that it is an irrelevant consideration that the child would have attended GG High School because the C Town Primary School is in the catchment of the GG High School. The Court gave careful consideration to the mother’s application for sole parental responsibility for the reasons that I have enunciated. There is no suggestion that the order made for sole parental responsibility was to be qualified. That of course, does not mean that a party is prevented from bringing an application, but if it is brought it is able to be the subject of interrogation to establish whether it has merit. I am obliged to consider the father’s application at its highest, that is, whatever basis or justification may be put forward by the mother, the issue as to whether or not a Rice & Asplund (supra) application is to be successful is based upon the high‑water mark of the evidence presented by the father.
The balance that must be struck is the issue and circumstances asserted by the father and the extent to which the litigation is likely to be damaging or deleterious to the child. It is not simply that an application meets with success on each and every occasion because the application is made. If that were to be the case the Court would be unable to test any of the circumstances to determine whether there was merit in the Court setting aside the orders or, at the very least, allowing an application to be heard. So that there is no misunderstanding, even a successful application for a Court to give leave to file further proceedings does not mean that the orders sought, certainly in terms of final relief, are made.
It means that the proceedings are then enlivened for further consideration by the Court. The focus would turn to the interim proceedings. I am entitled to consider a range of issues including whether there is an arguable case, that is, merit is not an irrelevant consideration when the jurisprudence of the Court requires a careful consideration of the matters raised in order to determine whether the proceedings may well result in unnecessary damage or distress, upset or abuse of a child. The father’s application could not be said to be supported by evidence that would satisfy the obligation of what is required by the rules of this Court. It does not amount to evidence. It amounts to the father’s argument, assertion and stream of consciousness. That is putting the father’s documents as benignly as I can.
A more insidious consideration is that it is aggressive and unrelenting in its abuse of the mother. It asserts extraordinary allegations that could only be designed to cause distress and upset and alleges that the mother has engaged in abusive conduct, perjury and sexual abuse. It alleges that the mother is a person of low moral integrity and that that, in and of itself, according to the father, should provide sufficient basis for the Court to find favour in his application. Before the Court would order that a child be involved in yet again a further significant change to her schooling, given that the exhibit of the school report would suggest that the child is settled, would require some further evidence. There is none. There is nothing to suggest that a move back to the C Town School would have utility in circumstances where this is the last semester of the child’s primary school experience.
I consider that even were the father to be successful upon his application to reopen the proceedings there is no evidence presented by him which would support the interim order he seeks. Merit is, therefore, a relevant consideration. It is a bridge too far where the only focus could be upon the further unsupported assertion that the child would then attend GG High School. In circumstances where there is no merit in respect of the interim proceedings and where there is no affidavit evidence that would enable the Court to make any decision at all, the proceedings would have no focus.
In circumstances where the father then seeks to put in place the potential for the child to be adversely affected by proceedings where there is no utility is, I consider, an abuse of process. There is nothing in the orders made which would suggest that the mother was not entitled to exercise sole parental responsibility in circumstances where I find, and it is not challenged, that it was not done for malicious purpose but rather as part of what was anticipated by the father, namely that the mother would be moving to secure accommodation in the City JJ area.
I make the order as appears at the commencement of my reasons.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 28 July 2021