Finch

[2016] FamCA 806

FAMILY COURT OF AUSTRALIA

FINCH [2016] FamCA 806

FAMILY LAW – PRACTICE & PROCEDURE – Leave to file Initiating Application – Whether the applicant should be granted leave to file new proceedings – Where the applicant father claims to have new evidence – Where the applicant has been charged with stalking the mother’s former barrister – Where the applicant currently on parole – Where there are current orders providing for the applicant to spend time with the child – Where the applicant suffers from Bi Polar Affective Disorder associated with Agoraphobia – Where the applicant claims he is unable to facilitate changeover – Where the applicant has been having contact with the child pursuant to the existing orders – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Finch

FILE NUMBER: BRC 2788 of 2009

DATE DELIVERED: 22 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 20 September 2016

REPRESENTATION

THE APPLICANT: In Person

Orders

1. The Application in a Case filed by the father on 6 September 2016 is dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Finch

Applicant

REASONS FOR JUDGMENT

1. On 22 November 2011, in parenting orders proceedings between Mr Finch and Ms Shibo, the parents of a daughter, born in 2007, I made orders with the consent of the parents and an Independent Children’s Lawyer that had been drawn up and presented to the Court at the commencement of the trial that had been listed.

2. Each of the parties was represented by counsel. The orders were comprehensive and provided for the child to live with the mother and to spend time with the father on each alternate weekend from Friday afternoon to Sunday afternoon.

3. The mother lived in Region D. The father in the Moreton Bay area. The orders I made with their agreement provided for the father to collect the child from Suburb M (in the hinterland of Region D) at the commencement of her time with him and for the mother to collect her from a children’s contact centre at Suburb B at the conclusion of her time with the father.

4. In August 2012, the father filed an Amended Initiating Application seeking changes to those orders. I dismissed that on 7 March 2013 and made an order that he must not commence any proceedings seeking parenting orders in respect of the child without obtaining the leave of the Court. That order remains in force.

5. Subsequently, in 2014, I gave the father leave to file a fresh Initiating Application, restricted, though, to three particular issues. Those proceedings were opposed by the mother and went to trial before me last year.  Another ICL had been appointed by a Registrar of the Court and was involved in that trial.

6. In the meantime, the 2011 orders had been varied by necessity as the children’s contact centre in Suburb B had refused to be involved with this family any more, ostensibly because of the father’s behaviour the centre management considered unacceptable.

7. On 21 August 2015, I delivered judgment and made orders discharging all previous parenting orders and replacing them with some fresh ones that included conferral of sole parental responsibility for the child on the mother, reducing the time the child spent with the father to school holidays only (something the father had at the end of the trial asked me to do) and providing for all changeovers of the care of the child to take place at the Suburb M State School (something the father strongly opposed).

8. The father appealed against the orders I made, but earlier this year the Full Court dismissed his appeal.

9. On 6 September 2016, the father filed an Application in a Case and an affidavit in support in which he seeks a number of orders. Though not as concisely or eloquently expressed as they might have been if drawn by a lawyer, the orders the father seeks essentially are about him being given leave to file a fresh Initiating Application seeking new parenting orders.  He also sought to have the Application in a Case heard by a Judge other than me. The brief affidavit the father filed in support of the Application in a Case refers to “critical NEW evidence” that will show that the Court made a “serious error” in its previous decision; that the mother committed perjury; that I have judged the father wrongly; and that the current orders “are seriously Frustrated (sic) and in serious error”.

10. When I read the material in chambers to determine how to proceed with the matter, I considered it best to list the application for hearing on an ex parte basis in open Court to give the father the opportunity to make oral submissions to the Court as to why he should be given leave. I listed the matter for hearing before me on Tuesday, 20 September 2016. I was not persuaded by anything in the affidavit evidence filed by the father or anything I already know about this matter that I should not hear this Application in a Case.  I also gave directions that the father was to be instructed by Registry staff that he was not to serve the mother, because the matter was to be determined on an ex parte basis.

11. At the hearing, I gave the father leave to hand to the Court a copy of the Initiating Application and supporting affidavit that he would file and serve on the mother if he was given leave to do so.

12. I asked him to make his oral submissions as to why I should give him leave to file the fresh application and as to why, if he is given leave to file it, I should not hear it (which was one of the orders he seeks in the Initiating Application).

The Application and the orders the father seeks

1. The father’s draft Initiating Application which he seeks leave to file seeks the discharge of all of the parenting orders made on 21 August, 2015 and the reinstatement of the orders made on 22 November, 2011, save that the father would seek to have handovers of the child at a fast food restaurant in Town E which he says in only 11 kms from his residence. He would also seek specific detailed orders about the parties not approaching each other at the handovers, and about the use of a communication book. Finally, the father would also seek, if given leave, an injunction restraining each of the parents from commencing proceedings for family protection orders in the State Magistrates Courts unless brought by the Queensland Police Service.

The Evidence relied upon by the father and the submissions made by him

1. The father attached to his affidavit a report from Dr L, psychiatrist, dated 11 July 2016. He also attached a report from Dr S, clinical psychologist also dated 11 July 2016. Those two reports were provided to a solicitor who represented the father in District Court criminal proceedings he was involved in earlier this year. The reports make it clear that the father was charged with the criminal offence of stalking and that the complaint of stalking was made by the female barrister who had represented the mother in the parenting proceedings in this Court, at least up until sometime after the 2011 consent orders.

2. At the hearing on Tuesday morning, the father told me that he had pleaded guilty in the District Court to the charge of stalking that barrister and was sentenced to fifteen months imprisonment but that he was immediately paroled by the District Court Judge. The father told the Court that he is on parole now as a consequence.

3. Dr L reported that the father developed Post Traumatic Stress Disorder after an event that occurred overseas in 2013 but that it seems to be “under good control currently”. He went on to report that the father also suffers from “Bi Polar Affective Disorder associated with Agoraphobia”. He reported that the father has been trialled with various medications and has been compliant with the medication regime since the middle of last year. The doctor said that in April of this year, the father was put on Epilim 500 mg twice per day and Diazepam 5 mg twice per day “particularly when he develops Agoraphobic symptoms.” That is positive as my August 2015 judgment recorded Dr Q, the psychiatrist who prepared a report on the father for the ICL last year, as expressing the opinion that the father was not then under treatment that would be considered appropriate for a diagnosis of Bipolar Affective Disorder.

4. Dr L went on to report that the father’s mood has been quite stable and that the father was showing “significant stability in his mood”. He went on to say:

   As far as his Agoraphobic symptoms are concerned he feels extremely uncomfortable in crowded places, shopping centres and driving his car. He reports that when he has to drive he takes Valium and resorts to small amount of alcohol other times. When he tries to drive by himself he panics and gets hyperventilated, he becomes sweaty and feels extremely uncomfortable.

   [The father] is benefiting from appropriate engagement in psychological treatment and has exhibited significant stability in his mental state.

5. Relevantly, in a comprehensive report written specifically for use in the criminal proceedings, particularly the sentencing process, Dr S said he had seen the father once in his rooms and then had interviewed him twice subsequently over the telephone. He said that the father had apparently suffered a panic attack on his way to the second appointment and had to return to his home, hence the first telephone interview and then the second. The doctor reported that the father did present with “a raft of symptoms consistent with post-traumatic stress disorder and bipolar affective disorder”. He went on, later in the report, to express the opinion that the father had “become more isolated and withdrawn” as a result of his mental health disorders. He then added that the father suffers from agoraphobia “which limits his community access” as he “experiences panic attacks when operating his motor vehicle and attending public facilities”.

6. In his written material and his oral submissions to the Court on Tuesday morning, the father made much of the assertion that this “new” evidence supported his case for leave to be granted for him to file a fresh Application initiating proceedings seeking the changes he wanted to the existing orders. He appeared to place great weight on the references by the psychiatrist, Dr L, and the psychologist to the fact that he appears to suffer from agoraphobia which impacts upon his ability to drive places. He argued that it was totally unfair that the existing orders require him to drive a distance that he asserted was 80kms each way (160 kms per trip) at the commencement and the conclusion of the time the child spends with him in the school holidays. When I respectfully asked him why the existing orders should be changed to require the mother to drive that far and for him to only have to drive 11 kms each way, the father merely responded “why not?”

7. With respect to the father, evidence that the father suffers from agoraphobia is not “new”. I had evidence before me last year when I gave judgment in August that the father was said to suffer from agoraphobia. In fact, Dr Q had reported that the father had told him that he had been diagnosed with Bipolar Affective Disorder, PTSD and agoraphobia. I observe that the diagnosis of agoraphobia seems, from my reading of the reports, to be based most particularly on the self-reporting of the father to the report writers of his experiences and feelings. Unsurprisingly, without more than what the father has told them, the writers appear to accept that he must suffer from agoraphobia. In contrast, Dr Q when he reported to the ICL last year said that if the father’s description of panic symptoms was accepted as true those symptoms would appropriately attract a diagnosis of agoraphobia.  However, Dr Q did go on, as I observed in my judgment, to express the opinion that there would be considerable scope for improvement in the father’s symptoms of agoraphobia with appropriate pharmacological and psychological therapy that would improve his functioning and his ability to drive distances. Neither Dr L nor Dr S said anything about this, save for the observation by Dr L that I included earlier that the father was prescribed Diazepam 5 mg twice per day “particularly when he develops Agoraphobic symptoms”.

8. Significantly, when the parties presented the terms of their agreement to the Court for orders to be made in 2011, the father agreed to drive to Suburb M at the commencement of every second weekend of time that the child was to spend with him. He did that, as I understand it, until the children’s contact centre terminated its involvement with the family because of his behaviour around the centre. Only after that did the issue of difficulty with driving seem to emerge. Even then, I remember that the father argued that his inability to drive was as much related to physical difficulties with an old shoulder injury that he had, as it was to his “anxiety”.

9. After I changed the orders by necessity to require the father to do the driving both ways to Suburb M in order to collect and return the child to and from the mother’s care, he began to tell the Court that he could not drive that far because he suffered panic attacks. He continually told the Court, on many separate occasions, that such orders effectively prevented his daughter from spending any time with him as he would not drive up to Suburb M to get her or to return her.

10. As I observed in my August 2011 judgment, the father had demonstrated on two occasions in 2015 to that time that he was capable of getting up to Suburb M and picking the child up from the school and returning her to that place. I determined, in all the circumstances, that the best interests of the child would be served by providing for her to spend time with the father only in school holidays and only when the father collected her from Suburb M and returned her there at the end of her time with him, whether he do that by driving on his own or with someone else. I was quite conscious of the father’s claim that he suffers from agoraphobia when I made that order. I was not satisfied that required different orders to be made.

11. At the hearing on Tuesday morning, when the father was making the submission that he just cannot travel to Suburb M because of his agoraphobia, I asked him whether the child had spent time with him in all of the school holidays, as ordered, since August last year. Surprisingly, given his arguments, he quickly told the Court that she had spent all of the time with him that the orders provided for since they were made and that he had gone to Suburb M to collect her and to return her there on all but one of the return journeys. On that journey, he told the Court, his friend and neighbour who lives across the road from him took the child back to her mother as he was travelling to the Region D in any event for his own reasons.

12. The father was also at pains to refer to what he regarded as a draconian provision in the existing orders, namely the granting of liberty to the mother to apply to discharge the orders should the father fail to collect the child for two consecutive visits provided for in the orders. I gained a sense from the father’s reference thereto that he was very determined to make every effort to avoid triggering that right on the part of the mother.  I am satisfied that remains a good provision, if it assists in motivating the father to ensure he does not miss having the child with him. That is one of the reasons I made such an order in the first place.

13. I am not persuaded by the father’s evidence or his submissions or any of the other things he said during his oral submissions on Tuesday morning that there is sufficient grounds to allow him to again seek to vary the existing orders, particularly in respect of the handover location. I accept that he loves his daughter and is very fond of her and cherishes the time he gets with her. I am quite satisfied that he will continue to ensure, one way or another, that he collects her and has her with him for the time that she is to spend with him pursuant to the existing orders. I will not give him leave to seek to change the handover location or any of the other existing orders yet again. The latest reports of the psychiatrist and the psychologist do not cause me to consider it appropriate to allow the matter to be litigated again.

14. It also became obvious from the father’s submissions, though not from his written material, that if he is given leave to file a fresh Initiating Application he would seek to again obtain alternate weekend time with his daughter.

15. Nothing the father put before me or said to me in his submissions today causes me to consider that the frequency or duration of the time the child spends with him should again be litigated so soon after it was finally determined for the second time in four years, particularly after the father had told the Court just to make the orders for her to spend time with him in the holidays. Nothing I have read or heard today causes me to move from the view that at this point in her young life, the child needs the maintenance of stability and predictability and respite from the constant conflict that her father subjects her mother to when he is unrestrained by this Court or the State courts. In my judgment, holiday contact only remains in the child’s best interests. The father agreed with that last year. I am not persuaded to let him try to change that again now.

16. Finally, there is nothing in the material that persuades me that the question of an injunction restraining each party from making applications in the State courts for family violence protection orders ought to be litigated. The father told the Court that many years ago the mother obtained a protection order and that each time it expires she applies for a new one. He told the Court that now when the mother applies he does not contest her applications but rather simply consents to an order being made without admission that one is justified. He also told the Court that he recently obtained a Temporary Protection Order with the mother as respondent and himself as the aggrieved party. However, when the matter came on for a final hearing he was out of the country and the Magistrates Court determined to dismiss his application rather than adjourn it for a hearing on a date when he was to be back in the country. He told this Court that he has appealed that determination to the District Court. All of this information, and my own knowledge of this case and its history, informs me that an application for an injunction as now sought to be litigated by the father is inappropriate, unnecessary and could not be justified.  The things the father said about the mother and the way he spoke about her on Tuesday morning in my Court gave me little comfort that his attitude towards her has improved in any way.

17. The order I made in 2013 for the father to have to seek leave before filing and serving any application for parenting orders on the mother was made to protect the mother from having to deal with vexatious, harassing and totally unmeritorious proceedings in this Court on a continual basis. That order, in my judgment, remains justified. With respect to the father, this application is further proof of that. As I have observed, I accept that the father loves his daughter and cherishes his relationship with her. I accept that he does wish to improve it and that, now, he would like to spend more time with her. However, to achieve that, the father would do well to follow the recommendations of Dr Q given in his report last year, and Dr S given in his recent report. He would do well to remain compliant with Dr L’s treatment regime and to ensure that he meets all of the obligations of his current parole. Finally, he would do well to concentrate on spending the time with his daughter that the existing orders provide and enjoying that and ensuring that it is enjoyable for his daughter. If it is not, she will soon be at an age at which her own views about the time she spends with her father might become quite relevant.

1. In conclusion, as for the proposed order sought by the father for another Judge other than me to hear the proceedings should leave be granted for him to commence them, the father told the Court today that he reconsidered that issue, as he felt I was treating him more fairly today than in the past. Of course, I told him that I considered I was treating no more fairly than I always do, but even if I had granted leave for him to file his proposed Application Initiating Proceedings, whether he had changed his position or not, I would not have made an order that another judge hear it. In my judgment, the father has not demonstrated any proper grounds upon which I should recuse myself from hearing his matters. Unless he can do that, I will not order that another Judge must hear any applications he makes.

2. I will not grant the father the leave he seeks.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 September 2016.

Associate:

Date:  22 September 2016