FROST & FERGUSON

[2018] FamCA 448

FAMILY COURT OF AUSTRALIA

FROST & FERGUSON [2018] FamCA 448

FAMILY LAW – CHILDREN – where the mother makes an oral application to discharge the order for the preparation of a Family Report – application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order application – where the mother seeks a vexatious proceeding order against the father – where the mother submits that, as the recommendations of Child Protection are that the father should only have supervised time with the children, his application that the children live with him is vexatious and should be dismissed or struck out – where there are no findings made yet  with respect to the father’s application –  where it is impossible to assess whether or not the application made by the father is a vexatious proceeding – where the application is made prematurely or misconceived – application dismissed.

Family Law Act 1975 (Cth) ss 120Q, 102QB

APPLICANT: Ms Frost

RESPONDENT: Mr Ferguson

INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

FILE NUMBER: MLC 4602 of 2011

DATE DELIVERED: 4 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 June 2018

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER: Ms Webb

Orders

1. That the Application in a Case filed 1 June 2018 be dismissed.

2. That pursuant to s 69ZW of the Family Law Act 1975 the Department of Health and Human Services is requested to provide to the Court information as to any notifications, assessments or investigations with respect to the children X born … 2002, Y born … 2006, Z born … 2008 and W born … 2013.

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 Frost & Ferguson 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 MELBOURNE

FILE NUMBER: MLC 4602 of 2011

Ms Frost

Applicant

And

Mr Ferguson

Respondent

REASONS FOR JUDGMENT

1. The matter of Frost & Ferguson comes before the Court today upon request by the Independent Children’s Lawyer for a mention hearing arising out of indications made by the applicant, who is the mother in the proceedings, that she is unable to attend the scheduled reports with the Family Consultant for the purposes of a preparation of a family report, pursuant to order 8 of my orders dated 24 April 2018.  By way of background, I note that these are long-running parenting proceedings in relation to the parties’ four children:  X, who is aged 15;  Y, aged 12;  Z, aged nine;  and W, aged five years.

Application to discharge an order for a the preparation of a family report

1. The mother has this morning made an oral application to discharge order 8 of my orders of 24 April 2018.  There was no objection to her making that oral application.  The basis upon which the mother seeks the discharge of that order is as follows. 

2. Firstly, the mother submits that in view of the section 11F report prepared by Family Consultant Ms B in January 2018 it is the mother’s view that a family report is superfluous and unnecessary for the purposes of determining what is in the children’s best interests.  She submits that the children’s views are clearly stated to the Family Consultant for the purposes of the preparation of the section 11F report.

3. In those circumstances, she submits that given the strongly expressed views of the children in that report, a further reporting process is unnecessary.  The mother also submits that there has been a previous family report of Ms C, which provides sufficient information to the Court.  I note that that report was prepared in 2011, some seven years ago.  Of course, at that time the child W had not yet been born, and further, the child Z would then have been aged approximately two years.

4. The mother also relies upon the fact that there was a further family report prepared by Ms D in 2016.  The difficulty with that report is that neither the mother nor the children presented to the family report writer for the purposes of the preparation of that report.  Having regard to that chronology, it is evident that the only family report that has ever been prepared in relation to this family was that of Ms C prepared in 2011.

5. The mother also submits that the recommendation of Child Protection contained in a letter from them in 2014 is that the father should never have unsupervised time.  Again, that is correspondence that was prepared some four years ago. 

6. The father currently spends no time with the children, and indeed has not spent time with the children for a period of approximately two years.  The current orders in relation to the parenting issues are the orders made 15 March 2016 in the Federal Circuit Court of Australia.

7. Those orders, at that time, made provision for the request of a section 69ZW report. Otherwise, there was an order for the release of a family report. An order was also made for the father to spend supervised time with the children at the E Contact Centre in F Town. Those orders have never been implemented due to the assessment undertaken by E Contact Centre that this family was not appropriate for that service. Accordingly, that supervised time has never occurred.

8. The father’s case is that this is a matter where the mother has sought to alienate the children from him.  His case is that the mother does not now and never has supported the father spending time with the children.  These are serious issues that need to be determined by the Court. 

9. The proceedings have been fixed for a trial before me to commence on 20 August 2018.  When I made trial directions on 24 April 2018, I made an order for the preparation of a s 62G(2) family report.  In my view, that family report is an essential piece of evidence in which the Family Consultant will undertake independent observation of both the mother and the father.  That Family Consultant will also have the opportunity to interview and observe the children, and if the Family Consultant considers it appropriate, to undertake observation of the children with both the mother and the father.

10. I expect that such Family Consultant would also undertake all necessary enquiries of other professionals in the children’s lives; for example, if considered appropriate, their schools, health providers or other experts who play a role in this family’s life.  Absent that evidence, I consider that it will be difficult for the Court to make an appropriate assessment as to what is in the children’s best interests.

11. The mother also submits that due to an injury to her back, she is unable to attend the appointments scheduled for 12 June 2018.  In support of that submission, she relies upon a medical certificate from the G Town Medical Centre dated 2 June 2018.  That certificate provides that:

    [The mother] is unable to do long driving due to acute back injury…  Patient is advised rest, analgesia during acute symptoms and physiotherapy once acute pain settles down.  Patient is booked in for a review in 1wks [sic] time...

12. That certificate does not indicate that the mother is unable to attend Court for the purposes of the preparation of a family report.  It indicates that she might have difficulty in driving to the Court to attend that appointment.  I have indicated to the mother that it may be that she needs to make arrangements for someone else to drive her to Court, that she might need to take more breaks than she otherwise would to travel to Court from her home in H Town, or that she might consider that it is appropriate to undertake travel by train so that she is able to stand and rest appropriately during travel to Court for the purposes of the appointment.

13. The appointment is scheduled in eight days’ time.  The mother has a further appointment with her doctor prior to that appointment so that she can address practicalities of how she best travel to Melbourne for the purposes of the family report process.  As I have already indicated, it is my view that it is essential that there be a family report prepared to assist the Court in assessing what is in the children’s best interests. 

14. If the appointments with the Family Consultant scheduled for next week are postponed, the next available appointments are not until September.  The consequence of cancellation of next week’s appointments is that the trial date will need to be vacated.  The trial would likely be listed in November or December of this year.

15. In my view, having regard to the long history of these proceedings, such delay would be contrary to the children’s best interests.  It is evident from the submissions made by the mother and the father that these long-running proceedings have had an adverse effect on the children and will continue to do so until the matter is brought to a conclusion.  For these reasons, I dismiss the mother’s oral application for a discharge of order 8 of my orders dated 24 April 2018.

Vexatious Proceedings Application

1. The mother in this matter has filed an Application in a Case, dated 1 June 2018, in which she seeks an order pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”), that there be a vexatious proceedings order, made in respect of the father, who is the respondent to these proceedings. That application is supported by an affidavit, filed 29 May 2018, and also by written submissions that were forwarded to my associate, by email, and which were prepared for the hearing this day.

2. The proceedings before the Court relate to future parenting arrangements for the four children of the relationship:  X, aged 15; Y, aged 12; Z, aged nine; W, aged five.  These current proceedings were commenced by the mother in 2014, she filing an Application for Final Orders, seeking orders, the effect of which was to have the father’s time with the children supervised.  The father, in 2014, filed a Response to Initiating Application, that response seeking, in effect, continuation of the father’s time with the children.  Subsequent to the filing of his initial Response to Initiating Application in 2017, the father filed an Amended Response, in which he seeks that the children live with him.

3. The mother maintains that the father should not be spending time with the children and, if time is spent, that it occur on a supervised basis. The mother places heavy reliance upon the reports and information that she has received from the Department of Health and Human Services (“the Department”), with respect to those matters and, in particular, I was referred to the section 69ZW report, submitted by the Department and dated 16 May 2016. The conclusion to that report indicates that, at the time of its preparation, it was the assessment of the Department that:-

   (a)The children have been exposed to significant family violence, perpetrated by the father;

   (b)The children have, as a consequence moved, on numerous occasions, with the mother; and

   (c)There has been disruption to their schooling due to fear of being located by the father, and there has been impact on the children’s learning, formation of social relationships, networks and ongoing stability.

4. The conclusion to that report indicates that the children have expressed a preference that any time with the father be supervised, as it helps them to feel safe and, further, it was the writer’s assessment that any time with the father be supervised. 

5. The proceedings filed in 2014, by the mother and the father, have never had a final hearing.  The matter was allocated to my docket, at the commencement of this year and, on 24 April 2018 I made orders and trial directions listing this matter for a final hearing on 20 August 2018.  I also made trial directions for the filing of trial affidavit material and the preparation of a family report.

6. As I have noted in this judgment, the only other family report prepared in this matter was one prepared in 2011 and, indeed, that report predated the birth of the parties’ youngest child.  The mother submits that, as the recommendations of Child Protection are that the father should only have supervised time with the children, his application that the children live with him is vexatious and, therefore, should be dismissed or struck out.  The difficulty with that submission is that the father’s Response to Initiating Application has never been to trial.  There has never been a testing of the evidence.  Neither the mother nor the father had the opportunity of putting the evidence before the Court, in a trial setting, and having a testing of evidence and a judge making a decision with respect to their competing applications.  That is the purpose of the trial that is listed before me, on 20 August 2018.

7. During the course of the mother’s submissions, I reminded her of the definition of vexatious proceedings, as identified in s 102Q of the Act. I invited her to put submissions directed to what fact or matters she relied upon which could be constituted as vexatious proceedings, within the meaning of that definition.

8. The mother, other than pointing to the Response to Initiating Application, to which I have already referred, and the amended Response, which was filed in the middle of last year, points to no other matter, in her oral submissions.  In her affidavit she referred to a contravention application that was filed by the father in 2017 and which was ultimately dismissed.  Therefore, there are two applications made by him, since these proceedings commenced in 2014.

9. There are no findings made yet, with respect to the father’s original Response.  Therefore, it is impossible to assess whether or not the application made by the father is a vexatious proceeding.  These are matters that will need to await the testing of evidence at trial, and any findings that might emerge from the testing of that evidence.  In my view, the application made by the mother, having regard to the history to which I have referred, is an application made prematurely and is misconceived. 

10. Until such time as there has been a conclusion of the current proceedings, which I note commenced their life in the Federal Circuit Court, and which were ultimately transferred to this Court in 2017, some three years after their commencement in the other Court, it is impossible to assess whether the conduct of either party is what might be constituted as vexatious conduct, within the meaning of s 102Q of the Act. Therefore, in my view, the only appropriate order to make, with respect to the mother’s application, is that it be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 June 2018.

Associate: 

Date:  4 June 2018