Fierro & Fierro (No 4)
[2022] FedCFamC1F 687
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fierro & Fierro (No 4) [2022] FedCFamC1F 687
File number(s): SYC 7639 of 2021 Judgment of: BERMAN J Date of judgment: 13 September 2022 Catchwords: FAMILY LAW – CHILDREN – Best interests – Where final parenting orders were made by consent in May 2021 – Where the applicant has initiated proceedings in October 2021 – Where the first and second respondent seek that the applicant’s application be dismissed – Where the integrity of the final Consent Orders are not an issue – Consideration of the rule in Rice & Asplund (1979) FLC 90-725 – Where the applicant has not established any significant material change in circumstances – Where the application has no merit –Where the child has expressed views that she does not know the applicant nor wish to have a relationship with him – Where the ICL makes strong submissions that it is not in the child’s best interest for the proceedings to be enlivened – Where the applicant enlivening litigation will be damaging to the child – Consideration of the potential for summary dismissal of the application pursuant to s 45 of the Act – Consideration of whether the applicant may be considered vexatious – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 45A, 45A(1), 45A(3), 45A(4), 65(c), 67A, 69ZW, 102QB, 118 Cases cited: Marsden & Winch [2009] FamCAFC 152
Marino & Bello and Anor [2020] FamCAFC 314
SPS & PLS [2008] FLC 93-363
Rice & Asplund (1979) FLC 90-729
Division: Division 1 First Instance Number of paragraphs: 86 Date of hearing: 19 August 2022 Place: Heard in Adelaide, delivered in Sydney Counsel for the Applicant: The Applicant appeared in person by MS Teams Counsel for the First Respondent: The First Respondent appeared in person by MS Teams Counsel for the Second Respondent: Mr Trezise appearing by MS Teams Solicitor for the Second Respondent: Dobson Mitchell Allport Counsel for the Independent Children's Lawyer: Ms Watson appearing by MS Teams Solicitor for the Independent Children's Lawyer: Tasmania Legal Aid ORDERS
SYC 7639 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIERRO
Applicant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
13 September 2022
THE COURT ORDERS THAT:
1.The Initiating Application filed 20 October 2021 be 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
introduction
By Initiating Application filed 20 October 2021, Mr Fierro (“the applicant”) sought final parenting orders in respect of X born 2008 (“the child”). He sought to set aside the final orders made by consent on 21 May 2021, and by way of further orders the following:-
2.Final orders sought
Rescission/Variation of consent orders.
Applicant is permitted to contact the child by any means electronic or otherwise during reasonable hours.
That respondents do not interfere in anyway. (sic)
3.Interlocutory/ Variation of consent orders
Applicant is permitted to contact the child by any means electronic or otherwise during reasonable hours.
That respondents do not interfere in anyway. (sic)
Mr A Fierro (“the first respondent”) and Ms Bien (“the second respondent”) opposed the orders sought by the applicant.
The current proceedings now also involve an Independent Children’s Lawyer (“ICL”) to assist the Court as to orders that will promote the child’s best interests.
The applicant’s Initiating Application has been superseded by an Amended Initiating Application filed 6 February 2022, which expanded the orders sought to include orders that would enable the applicant to spend time with the child as follows:-
(19)The Applicant may visit the child at her residence on any weekend, school holiday or public holiday upon reasonable notice to either Respondent, that being, two days minimum prior notice.
The final orders sought by the applicant were the subject of a Further Amended Initiating Application filed 6 April 2022.
The Further Amended Initiating Application seeks the following further orders:-
…
2. THE FIRST RESPONDENT HAS SUPERVISED VISITS WITH THE CHILD ONLY AND NO PARENTAL RESPONSIBILITY.
3.IN THE ALTERNATIVE TO (2), AN ORDER FOR SUPERVISION OF THE CHILD
4.THE FIRST RESPONDENT IS PROHIBITED FROM DENIGRATING [MR FIERRO] AND [MR C] TO THE CHILD OR ANYWHERE CHILD MAY PERCEIVE SAME
5.THE FIRST RESPONDENT IS PROHIBITED FROM DENIGRATING THE CHILD’S OTHER FAMILY MEMBERS
6.THE FIRST RESPONDENT ACCEPTS AN UNDERTAKING TO THE COURT THAT IT WILL NOT DENIGRATE THE APPLICANT, [MR FIERRO], TO THE CHILD OR ANYWHERE THE CHILD MAY PERCEIVE SAME
7.THE FIRST RESPONDENT ATTEND THE RELEVANT THERAPEUTIC OR TREATMENT PROGRAM
In addition, the applicant no longer seeks orders in terms of paragraphs 10, 14, 16 or 30 of the Initiating Application filed 10 March 2022.
By Response to Initiating Application filed 6 April 2022, Mr A Fierro (“the first respondent”) seeks that the Initiating Application filed 20 October 2021 and the Amended Initiating Applications filed 6 February 2022 and 10 March 2022, be dismissed. The orders sought by the first respondent are supported by the second respondent and the Independent Children’s Lawyer (“ICL”).
background
The first and second respondents are the parents of the child. The applicant is the child’s half sibling. He is also the first respondent’s son from a previous marriage.
Whilst not a party to these proceedings, Mr C is a relative of the applicant and child of the applicant’s sister, Ms F.
Mr C, now aged 18 years, brought proceedings seeking to communicate with the subject child on the basis that she is Mr C’s relative.
Those proceedings were the subject of a consideration as to whether Mr C had status and standing to bring parenting proceedings and by judgment delivered in Marino & Bello & Anor [2020] FamCAFC 314, his application was dismissed. That order was the subject of an appeal by Mr C, which has now been dismissed.
Following the breakdown of the relationship between the first and second respondent, orders by consent were made on 21 May 2021 in proceedings between the applicant and the first and second respondent.
It is not immediately apparent as to the circumstances by which the applicant considered he should be involved in the earlier proceedings however, there does not appear to have been any objection to him being a party nor any consideration as to disjoinder.
The detail of the Consent Order is significant to the determination as to whether the applicants’ application for communication and time to be spent with the child, should be dismissed.
The consent orders made on 21 May 2021 are in the following terms:-
Parental Responsibility
1.THAT [Mr A Fierro] (“the Father”) and [Ms Bien] (“the Mother”) have equal shared parental responsibility for the child [X] born 2008 (“[X]”).
Live with Orders
2.THAT [X] live with her Father and the Mother or as otherwise agreed in writing as between the Father and the Mother.
Communication between X and Mr Fierro
3.THAT [Mr Fierro] (“the Applicant”) be restrained from communicating with [X] by either in person or by text message, mobile telephone, email, letter or any other form of communication unless as:-
(a) Otherwise agreed in writing as between the parties; or
(b) If initiated by [X].
4.THAT Any communication initiated by [X] in accordance with order 3(b) above is only to be for a period of time whilst [X] consents to such communication and the Applicant must cease communicating with [X] if she requests him to do so.
5.THAT if communication is initiated by [X] in accordance with order 3(b) and 4 then, for the period of the communication:-
(a)the mother and father must do all things necessary to facilitate [X’s] communication with the Applicant including providing her with access to a mobile telephone with call credit at all times.
(b)the mother and father are not to interfere, prohibit, discourage or otherwise impede [X’s] communication with the Applicant.
6.THAT the Applicant is permitted to send gifts to [X] on special occasions, such as for Christmas and her birthday, provided that no correspondence is included in the gift other than a card stating who the gift is for and who the gift is from.
Restraints
7.THAT each party is hereby restrained from denigrating any of the other parties to or within the hearing of [X].
8.THAT each party is hereby restrained from discussing the content of the court proceedings with [X], in particular the allegations made by the Applicant, [Mr Fierro] as against [X’s] mother and father.
9.THAT each of the parties are restrained from threatening, harassing, abusing or assaulting any other party.
As matters have transpired, the first and second respondents have agreed that the child should be in the primary care of the first respondent. The first and second respondents appear to be in broad consensus as to the proper management and parenting of the child and are united in their opposition to the orders sought by the applicant, given that he recommenced proceedings five months after the final orders were made.
It is a relevant consideration that the consent orders of 21 May 2021, do not prevent communication between the child and the applicant but rather makes that communication conditional upon it being initiated by the child and then for only so long as the child may seek to do so.
It is also conceded by the applicant, that at present, the child is highly resistant to either communicating with him (or his relative Mr C) and remains opposed to physical contact with either of them.
The parties are not agreed as to the reason why the child rejects the applicant’s overtures.
For his part, the applicant contends that the child’s refusal to engage with him is as a result of a campaign to promote the child’s alienation from any relationship with either the applicant or Mr C. The first and second respondent and the ICL contend that the applicant has little, or no relationship, with the child and that the proceedings brought by him in both the current proceedings, but also those involving his sister and her children as well as his support of Mr C’s now dismissed initiating application, is vexatious and designed to cause financial and emotional distress to the first and second respondents.
The allegation of alienation of the child, is one of the reasons put forward by the applicant in seeking to dismiss the opposition by the first and second respondent and the ICL to his Initiating Application.
At the commencement of the proceedings, I raised with the first respondent and counsel for the second respondent and the ICL, the extent of the relief that was being sought namely:
(1)The application of the rule in Rice & Asplund[1];
(2)The potential for summary dismissal of the application pursuant to s 45A of the Family Law Act 1975 (Cth) (“the Act”);
(3)Whether permission should be granted pursuant to s 65(c) of the Act; and
(4)Whether consideration should be given to an application under s 102QB and s 118 of the Act on the basis that the applicant is vexatious.
[1] (1979) FLC 90-729
Counsel for the second respondent limited his submissions to the application of the rule in Rice & Asplund (“supra”) and the power that the Court has pursuant to s 45A of the Act to dismiss the current application.
the proceedings
Following the final Consent Orders made in PAC2535/2020, the applicant filed an Initiating Application on 20 October 2021, in SYC7639/2021. The matter came before a Judicial Registrar on 25 November 2021, who noted that there was no appearance by or on behalf of the applicant and that whilst the applicant resided in Sydney, the child and the parents resided in Tasmania. It was also noted that the proceedings were connected with proceedings SYC7538/2021 in the matter of Willard & Fierro. Those proceedings were heard and by orders made 4 July 2022, Mr C’s Initiating Application filed 15 October 2021 and all extant applications, were dismissed.
The orders sought by the applicant in his Initiating Application were considered to be inadequate and incapable of enforcement. Accordingly, the applicant was ordered to file an Amended Initiating Application.
By orders made 1 February 2022, the proceedings were transferred to the Hobart Registry with orders made requiring the respondents to file and serve a Response to Initiating Application and a Response to Application in a Proceeding. The proceedings were finally listed before a Registrar sitting in Hobart on 8 March 2022. Orders were made for the appointment of an ICL and for reasons that are not entirely clear, extensive orders were made pursuant to s 69ZW of the Act directed to the Department of Communities, Child Safety Services and the Tasmania Police Service for any notifications in relation to the child or the parties.
It is difficult to understand the level of intensity of the Court process in circumstances where the issue was of narrow compass given there were no orders sought that challenged the care arrangements for the child as agreed by the first and second respondents.
Moreover, a consideration of the co-listed file of Willard & Fierro would have highlighted a need for the Court to consider an expedited process.
The matter was then heard by a Deputy Registrar sitting in Melbourne on 16 March 2022. Orders were made transferring the proceedings to Division 1 of the Court, noting the complexity. The matter was not listed before a Judge, but rather came before a Judicial Registrar on 23 March 2022, who made orders allowing the parties to inspect the s 69ZW documents.
On 25 March 2022, a Judicial Registrar sitting in Sydney made orders which noted that the matter required “a threshold Rice & Asplund hearing” and further ordered the Contempt Applications filed 11 and 15 February 2022, be listed for mention before a Senior Judicial Registrar, that the proceedings be adjourned for a readiness hearing on a date to be advised by the National Assessment Team (“NAT”) and that the applicant was to file his foreshadowed application to discharge the appointment of the ICL by 28 March 2022.
On 11 April 2022, a Registrar sitting in Hobart made notations allowing further inspection of documents produced by the Department for Health and Human Services pursuant to s 69ZW.
It was not until 12 April 2022 and then on 13 April 2022, that the matter came before McGuire J who heard the application for the discharge of the appointment of the ICL and reserved judgment.
The outstanding contravention proceedings filed by the applicant, remained in Division 2 for hearing. On 29 April 2022, a Senior Judicial Registrar made orders transferring the Contravention Application, contempt and parenting proceedings to Division 1.
The applicant filed an Application in Proceeding on 1 April 2022, seeking to review the decision of a Judicial Registrar made 25 March 2022, arising from a refusal to find merit with the applicant’s request to obtain evidence from an overseas jurisdiction and seeking that “any and/or all orders relating to Mr C with regards to “standing” are set aside or voided”. That application for review was dismissed by McCleland DCJ on 6 May 2022, with an order that the applicant pay the costs of the respondent in the sum of $3,500.
On 20 May 2022, Henderson J listed the applicant’s Contravention Application filed 16 March 2022 for hearing on 23 August 2022. It was noted that the various Contempt Applications would be dealt with after the hearing of the Contravention Application.
On 9 June 2022, Alstergren CJ listed the matter before me to be heard after the defended hearing in the related matter of Willard & Fierro SYC7538/2021.
On 10 June 2022, Henderson J reallocated the Contravention Application and the Contempt Applications to another judge.
On 15 June 2022, McGuire J ordered that the applicant’s application for leave to issue a subpoena to a Country G Court and/or the Supreme Court of Tasmania be dealt with as soon as practicable.
On 20 July 2022, Smith J dismissed the applicant’s Contravention Application and adjourned the respondent’s oral applications for summary dismissal of the outstanding Contempt Applications to 3 August 2022, on the basis that they were frivolous, and/or vexatious, and/or abuse of process, and or as having no reasonable likelihood of success.
On 21 July 2022, a Registrar sitting in Hobart made orders in Chambers listing a defended subpoena hearing before a Judicial Registrar sitting in Adelaide on 19 September 2022.
Ultimately, the matter came before me on 22 July 2022, when I listed the Response of the first respondent filed 6 April 2022, seeking to dismiss the Initiating Application.
On 1 August 2022, a Judicial Registrar sitting in Hobart vacated the subpoena hearing and adjourned the notice of objection for hearing before me on 19 August 2022.
The Court file reflects that there has been ninety five separate documents filed and forty nine documents filed in SYC7538/2021 at significant cost to the second respondent, the ICL and the public.
The sheer number of attendances before Judicial Registrars and Judges in various court registries is astounding and not warranted given the narrow compass of the issues in dispute.
the application to dismiss
In Marsden & Winch [2009] FamCAFC 152, the Full Court said:
57. In Miller & Harrington (supra) the Court posed the question:
105.Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
58.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 circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
The practical application of the principle in Rice & Asplund as was said by Warnick J in SPS & PLS [2008] FLC 93-363, that:
48. …
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interest principle".
The principle in Rice & Asplund does not necessarily have to be determined as a preliminary or interim matter, but may well be an issue that is capable of determination at various stages during litigation. The best interest of a child, or children, is the relevant guiding consideration. The focus should be to avoid endless litigation.
I am also cognisant that the relevant consideration is upon the matters raised by the applicant providing they are credible and not vexatious or frivolous.
The applicant relied upon his case summary document filed 17 August 2022. Acknowledging that he is required to demonstrate a substantial change, a relevant new circumstance or sufficiently weighty new facts, at paragraph 15 of the applicant’s case summary, he underpins his argument upon the following matters:-
a.Relevant non-disclosure – [the child]’s recent self-harm and suicidal ideations known by parents since 2010 and kept from family and ICL (Affidavit of [MF] 5 Aug 2022 [3].
b.Contempt/fraud/child abuse by the respondents in obtaining the current orders (see below).
c.Further evidence (not available in previous proceedings see Affidavit of [MF] 27 July 2022, schedule 1A and 1B); and Affidavit of [MF] 5 Aug 2022).
d.Medical circumstances subsisting at time the consent orders entered into – applicant unfit for trial – [...] – down for 1 year – [...] (Exhibit MED1).
…
(Emphasis as per original)
The applicant relied upon a medical report from Dr E that was used in proceedings in the Supreme Court of New South Wales between the applicant and a professional body, concerning a decision made to remove the applicant from a list of professionals able to provide professional service.
The report goes no further than a request that the applicant be able to attend court hearings by video link rather than a requirement of personal attendance. A further report from a general practitioner dated 18 June 2021, advises that the applicant did not have a definitive diagnosis and given that his prognosis was uncertain he was unfit for court or work and therefor unfit to travel interstate to a hearing in City J.
By 30 November 2021, a specialist at K Hospital advises that the applicant had made a near complete recovery.
At all material times, the applicant remained in Sydney whereas the respondents and the child remain in City J.
The orders made by consent on 21 May 2022 do not prohibit communication between the child and the applicant but rather is to occur subject to the child’s wishes.
It is only in later iterations of the Initiating Application, that the applicant introduces an order that he be able to spend time with the child at his discretion and more recently, that the child be removed from the care of the first respondent, although when challenged, the applicant was not able to better particularise the order sought by him. Specifically, the applicant does not seek that the child live with him.
The primary issues between the parties was as between the first and second respondents. The involvement of the applicant appears to be at best peripheral.
The order was made by consent and there is no evidence presented by the applicant that suggests his ability to consent to an order or to understand the nature and consequences of the proceedings, was in any way impacted by his underlying medical condition.
I do not consider that there is any evidence which would suggest that the applicant was at a disadvantage in the proceedings and in any event, if such a circumstance existed, the appropriate course of action would have been to consider an appeal rather than the filing of an Initiating Application only a few months after the proceedings were resolved.
The applicant contends that the child has recently engaged in self-harm and has experienced suicidal ideations. Moreover, the direct allegation is that the respondents knew of the child’s propensity for self-harm but did not disclose the child’s distress to family and the ICL.
The applicant relies upon matters raised in his affidavit of 5 August 2022. In particular, he asserts that the child has engaged in self-harm and that this behaviour can be attributed to the consequences of the first respondent’s emotional and psychological abuse of the child. It is alleged that the applicant took steps to disrupt the relationship between the child and her relative Mr C. Moreover, it is suggested that the child is scared of the first respondent.
The gravamen of the allegations is found in paragraph 5:-
[The child] was thriving and doing well while I and [Mr C] were in her life and as of early 2021, everything was fine with the child. The child began self-harming with suicidal ideations somewhere in 2021.
It is conceded by the respondents that the child is seeing a psychologist.
The applicant provides no evidence to support the contention that the child has been the subject of psychological and/or physical abuse by either the first or the second respondent. The assertion is not supported by the ICL and in any event, it is only in the most recent iteration of the applicant’s Initiating Application that he seeks an order for the removal of the child from the primary care of the first respondent but without particularising the order that he seeks.
The applicant seeks to bring to account allegations that the second respondent was the subject of an aggravated assault by the first respondent and that there is evidence in Country G as to proceedings in that jurisdiction that involves the alleged removal of a child from the first respondent’s care.
The applicant relies upon matters raised by the first respondent in his affidavit of 18 August 2022 at paragraph 25, where the first respondent says:-
…
I have not been charged by police for any crime as the Applicant alleges. And is true that there was a Court Order where my son [Mr M] was unfairly removed from me with a lot of lies, same as the Applicant is doing now, and he knows what happened where I was unrepresented and I did not know of any accusations.
In 2006 I went to [Country L] for working reasons, I did not know how long I would be staying there, so I went to [Country G] I left [Mr M] under the care of one of my relatives, whom I trusted blindly.
I came back to [Country G] about 4 years later to have a holiday in [Country G] and pick him up. But by that time [Mr M] got used to my relative, to whom he already started to call Mum, and did not want to come with me. Only once I have hit him on his butt with a very light wooden spoon, even if my action was wrong it did not cause any harm to him.
…
The first respondent denies that he has any criminal conviction in Country G. In any event, it is difficult to see the relevance of proceedings involving the first respondent in Country G a number of years before the child was born.
I do not consider that the applicant has established any significant material change in circumstances.
Of fuller relevance are two pieces of correspondence authored by the ICL. The first email dated 12 May 2021, underpins the final consent orders made on 21 May 2021 and the second email dated 16 June 2022 provides the views expressed by the child.
In an email dated 12 May 2021, the ICL writes to the applicant and the respondents as follows:-
Dear Colleagues,
[Mr D] and Ms Watson had the pleasure of meeting with [the child] on 30 April 2021. [X] was brought to the Legal Aid offices by her mother and collected after interview by both her mother and father.
[The child] presented as a bright and thoughtful young lady. She was able to clearly articulate her views and engaged well in the process.
[The child] has provided her permission to convey that the following are her views in relation to this matter:
•[The child] was not keen on structured phone contact with [Mr Fierro]. Her preference was that if in the future she wished to contact [Mr Fierro], she could do so but that this would be at her instigation only;
•[The child] was comfortable with and preferred an order requiring [Mr Fierro] not to contact her unless she had initiated the contact;
•We discussed the provision of gifts from [Mr Fierro] to her. She did not say yes or no and was uncertain as this is not something that has occurred in the past. She was quick to say that she was confident that if [Mr Fierro] was to send her gifts that her parents would tell her that he did and would pass them onto her if she so wished;
•[The child] confirmed that if she had concerns about her safety or the behaviour of either of her parents that she knew that she could raise those concerns with either Police, the school, the Independent Children’s Lawyer or her other parent if appropriate.
…
The ICL has considered the material filed in this matter, the Notices of Risk, the s 67A notification, Notice of Risk Response, the Child Dispute Conference Memorandum and the Child Inclusive Conference Memorandum, along with X’s views.
As is apparent, the ICL supported the final consent order. In a letter dated 16 June 2022, the ICL writes to the applicant and the respondents as follows:-
Dear Colleagues, [Mr Fierro] & [Mr A Fierro]
[MR FIERRO], [MR A FIERRO] & [MS BIEN] – SYC7639/2021
I extend thanks for [Mr A Fierro] for facilitating my meeting with [the child] on 8 June 2022.
[The child] impresses as a mature 14 year old who expresses her view clearly. She engaged with me well and was thoughtful and considered in our discussions.
[The child] has consented to me providing the following information to the parties:-
- She is clear as to what the 21 May 2021 orders provide with respect to contact with [Mr Fierro]. She knows that she is able to contact him when and if she chooses and she said that if she wanted to contact him that she was able to on her phone.
-She said that she had no reason to speak with [Mr Fierro] and that she would prefer no contact with him.
- She said that she had received a gift from [Mr Fierro] and recalled it being $200. She said that she didn’t want gifts from [Mr Fierro] as it felt “weird” and she didn’t like it when she received it. She would prefer not to receive gifts in the future from [Mr Fierro].
As [the child] presents as a mature and intelligent young person it is my preliminary view that the Court ought to give her views considerable weight.
I invite the parties to respect [the child]’s views and to bring this litigation to an end.
The balance that must be struck, involves a consideration of the extent to which the litigation that is sought to be enlivened by the applicant, 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.
I am obliged to consider a range of issues including, whether there is an arguable case and in that respect, 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 the child.
I do not consider that the applicant has presented any evidence which is likely to further the best interest of the child.
The Court can have significant confidence in the forceful submission of the ICL, that the child understands the final consent orders and both knows and is able should she wish to do so, to contact the applicant. She does not wish to do so.
A further concern is that the conduct of the applicant has about it a focus not on the child but rather to pursue some internecine familial dispute with the first and the second respondent.
It is likely that were the proceedings to be enlivened, the distress caused to the child, presumably of an order that compelled the child to both communicate and spend time with the applicant, would be adverse to the child’s interests.
The applicant acknowledges the current high level of resistance by the child to the orders that he seeks. Whilst he may well believe that the child’s reluctance to see him is as a result of the interference of the first and second respondents, the child’s reluctance is undeniable.
It is also a relevant consideration that s 45A of the Act was inserted by the Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth).
The purpose of s 45A of the Act is to enable the Court to better consider whether an application to strike out proceedings should meet with success. Under the heading of “No reasonable prospect of successfully defending proceedings” s 45A(1) of the Act provides as follows:-
(1)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 whether there is no reasonable prospects of success, s 45A(3) of the Act provides that the test is no longer to be either that the application is hopeless or is bound to fail before a court could decide that it has no reasonable prospects of success.
Section 45A(4) of the Act provides that:-
The Court may dismiss all or part of the proceedings… if [the Court] is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
Whilst I am not obliged to consider the application of s 45A of the Act, the nature of the allegations made by the applicant, the sheer volume of documents filed and the scant regard to affidavit material containing evidence rather than scandalous allegations, may well raise an arguable case that the conduct of the applicant may well be considered as vexatious.
The rule in Rice & Asplund (supra) requires a high threshold before a Court can consider that a child should be subject to further litigation. The subject child has been mired in litigation. In circumstances where I consider the integrity of the consent final orders not to be an issue and the strong submission of the ICL that it would not be in the child’s interest for the applicant’s proceedings to be enlivened in the absence of merit, the applicant’s Initiating Application should be struck out.
I make the orders as appear at the commencement of these reasons.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 13 September 2022
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