GRABLE & MCCORNISH

FAMILY COURT OF AUSTRALIA

GRABLE & MCCORNISH

[2013] FamCA 328

FAMILY LAW – CHILDREN – Where no appearance by a party – Whether proceedings ought continue in the absence of a party – Where a party does not comply with procedural order – Whether Court may determine the case as if it were undefended pursuant to the Family Law Rules 2004 (Cth).

FAMILY LAW – CHILDREN – Parental responsibility – Best interests of the children – Whether the presumption of equal shared parental responsibility has been rebutted – Where evidence of family violence.

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of child – Whether no time order appropriate

FAMILY LAW – PRACTICE AND PROCEDURE – Whether party ought be declared as a vexatious litigant – Matters considered.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA(2) and (4), 65AA, 65D, 65DA and 118(1)

Family Law Rules 2004 (Cth) r 11.02(2)

Chalk & Plasto [2013] FamCAFC 48
DJC v SJS and Another (2005) 24 FamLR 329
Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29

APPLICANT:

Mr Grable

RESPONDENT:

Ms McCornish

INDEPENDENT CHILDREN’S LAWYER:

Emerson Family Law

FILE NUMBER:

BRC

9363

2007

DATE DELIVERED:

10 May 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

22 January 2013

REPRESENTATION

THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Mr Neaves

SOLICITOR FOR THE RESPONDENT:

M A Kent & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Kirkman-Scroope

THE INDEPENDENT CHILDREN’S LAWYER:

Emerson Family Law

Orders

IT IS ORDERED THAT

All previous parenting Orders in relation to the child A McCornish, born … 2001 (“the child”), be discharged.
The child live with the Mother.
The Mother have sole parental responsibility for the child in respect of all major long-term issues as defined in the Family Law Act 1975 (Cth) (as amended).
The child shall not spend any time or communicate with the Father.
The Independent Children’s Lawyer be discharged.
All outstanding applications be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC9363/2007

Mr Grable

Applicant

And

Ms McCornish

Respondent

REASONS FOR JUDGMENT

The proceedings

The current proceedings concern the determination of the parenting orders which are in the best interests of A (“the child”), born in 2001.
This matter was heard by Bell J on 2, 3 and 4 February 2011 and, on 4 February 2011, as a result of material received by the Court[1], his Honour ordered, inter alia, on an interim basis, that:
a)the mother have sole parental responsibility for the child;
b)the child live with the mother;
c)the mother ensure that the child was in no way threatened by her half brother;
d)the father attend upon Dr M if she required him to; and
e)the matter be adjourned to 11 February 2011.
[1] marked Exhibit 4 in the proceedings before His Honour
As a consequence of Bell J’s Order, the child returned to live with her mother on 4 February 2011.
On 11 February 2011, Bell J ordered, pursuant to s. 65L of the Family Law Act 1975 (Cth) (“the Act”), that Ms C (the author of Family Reports in this matter):
a)assist the mother, if necessary, in the implementation of the Order made on 4 February 2011 (which saw the child return to live with her);
b)provide the child with counselling and protective and preventative education for her personal safety; and
c)interview the child approximately six weeks later for the purpose of providing a short report in relation to the child’s progress.
The matter was consequently adjourned to 4 May 2011.
On 4 May 2011, Bell J adjourned the matter to 5 September 2011 for hearing for two (2) days and made directions which, relevantly, required the Father to file and serve any affidavit in reply by 26 August 2011.
On 14 March 2012 Registrar Brooks, before whom the father appeared in person, ordered, inter alia, that the parties file and serve affidavits of evidence in chief from specified witnesses by 31 August 2012.
On 3 October 2012, Registrar Spink (before whom the Father appeared in person) ordered that:
a)each party file and serve specified affidavits of evidence in chief by 30 November 2012 and affidavits strictly in reply by 14 December 2012;
b)the parties confer by 30 November 2012 about the subpoenaed documents which may be tendered by consent;
c)the parties lodge, by 30 November 2012, a Case Information document containing the information required by the Order of Bell J made 4 May 2011.
The matter was listed for a compliance check on 19 December 2012. The Father appeared in person by telephone on this occasion.
On 15 October 2012 Registrar Brooks ordered, in Chambers, that the trial of the matter commence at 10.00am on 22 January 2013.
On 19 December 2012, Registrar Brooks made orders in relation to certain material produced pursuant to subpoena previously issued and ordered that the trial of the matter commence at 10.00am on 22 January 2013. The father did not appear in person or by legal representatives on this occasion.

The Father’s failure to appear

The Respondent Mother (“the mother”) and the Independent Children’s Lawyer appeared before me. The Applicant Father (“the father”) did not.
At the commencement of the proceedings the Independent Children’s Lawyer sought and was granted leave to file an affidavit of Michael John Emerson. I consider it clear from the contents of Mr Emerson’s affidavit, which I accept, that the father was aware that the proceedings were to be heard by the Court at 10:00am on Tuesday 22 January 2013. It is also clear, and I find, that the father informed the person from Mr Emerson’s office who made contact with him that he did not intend to appear before the Court on 22 January 2013. This position was reiterated by the father to Mr Emerson’s office in the course of conversation which occurred when the matter was stood down on 22 January 2013.
Both the mother and the Independent Children’s Lawyer sought that I proceed to make parenting orders in the absence of the Father.
I determined that the matter should proceed before me in the absence of the father.
I did this for the following reasons:
d)as noted above, I am satisfied that the father was aware of the proceedings and determined that he would not appear before the Court on 22 January 2013;
e)there is no material provided by the father to explain his decision not to appear on this day;
f)the matter has a significant history, having first commenced in October 2006;
g)the father has previously appeared before the Court and participated in proceedings since his commencing proceedings in October 2006. He has since appeared before the Court on a number of occasions as follows:
i)appeared on 1 November 2007 (in person);
ii)16 December 2009 before Federal Magistrate Spelleken (by his legal representatives);
iii)26 March 2010 before Murphy J (by his legal representative);
iv)10 July 2010 before Murphy J (by his legal representative);
v)22 October 2010 before Registrar Kane (by his legal representative);
vi)17 December 2010 before Registrar Kane (by his legal representative);
vii)before Bell J on 2, 3 and 4 February 2011 (where he was legally represented until 4 February 2011 at which time his legal representatives were granted leave to withdraw);
viii)4 May 2011 before Bell J (in person);
ix)3 October 2012 for Directions before Registrar Spink (in person)
and I consider that these appearances demonstrate a clear understanding, on his part, of the manner in which a party participates in proceedings before this Court.
I note that the father did not appear on 27 July 2007 (before Registrar Bint), 31 January 2008 (before Federal Magistrate Spelleken), on 11 February 2011 before Bell J, or 19 December 2012 (for the compliance check by Registrar Brooks). However, the father did appear in person at the directions hearing conducted by Registrar Spink on 3 October 2012 and, thus, was aware of the orders and directions made, at that time, for the preparation of material for the hearing before me today. The father has chosen not to comply with the orders and directions and has not filed any material since 18 January 2011.
Despite the Order made by Registrar Spink on 3 October 2012 requiring the father to file and serve an affidavit in support of his case by 30 November 2012, the last document filed on behalf of the father (other than a Notice of Ceasing to Act filed by his former solicitors) is his affidavit filed 18 January 2011.
Rule 11.02(2) of the Family Law Rules 2004 provides that if a party does not comply with a procedural order, the Court may determine the case as if it were undefended.
In addition to the matters set out in above, I consider that, given the number of occasions on which the father appeared before the Court on his own behalf (including his appearance before Registrar Spink on 30 October 2012), he was well aware of the obligations imposed upon him in conducting his own case.
I also consider that, given the length of time during which the parties have been involved in litigation in this Court, as demonstrated above, it is in the child’s best interests that these proceedings be brought to an end.

Orders prescribing the child’s care arrangements

On 21 November 2006 orders were made for the child to live with the mother and spend time with the Father in the manner particularised therein.
On 1 November 2007, Wilson FM made interim consent orders which provided that the child (and her brother) spend time with the father each weekend from 9.30am Saturday until 4.30pm Sunday and for two block periods in December 2008.
On 31 January 2008, Spelleken FM dismissed all outstanding applications, discharged those paragraphs of the previous Order made on 1 November 2007 which prescribed the time the child and her brother were to spend with the father and ordered that the child spend time with him at all reasonable times as may be agreed between the parties, with such time to take place at the home of the paternal grandparents or a place to be agreed.
On 16 December 2009 (after the father filed an Application in the Federal Magistrates Court) Spelleken FM ordered, by consent, that the child live with the father and spend supervised time with her mother for up to two (2) hours per fortnight at a Contact Centre and communicate with her by telephone on a weekly basis.
On 1 February 2010, Registrar Turner made an order requesting the intervention of the Director-General of the Department of Communities (Child Safety Services) (“the Department”) in the proceedings.
As noted above, on 4 February 2011, as a result of material received by the Court[2] Bell J ordered on an interim basis, inter alia, that the child live with the mother and that the mother have sole parental responsibility for the child.

The Parties’ proposals

[2] marked Exhibit 4 in the proceedings before His Honour Justice Bell

The Father

On 8 November 2010, the father filed an Amended Initiating Application seeking that the child live with him, spend time with her mother on a supervised basis (that being each alternate Sunday from 10.00am until 4.00pm with the mother to provide the names of four (4) proposed supervisors and the father to nominate one of these), that the mother ensure that the child’s half brother was not present when she is spending time with the child and that the parents have equal shared parental responsibility for the child.
As noted above, he failed to appear before me to agitate the making of these orders.

The Mother

In a Case Information document filed 19 December 2012 the mother set out the Orders that she sought be made :
a)that she have sole parental responsibility for the child;
b)that the child live with her;
c)that upon the father completing a psychological assessment stating he is capable of caring for the child unsupervised, a PPP parenting program and a post separation communications programme, the child spend time with her father as agreed and failing agreement each alternate weekend from 9.30am Saturday until 4.30pm Sunday, for half of the gazetted school holiday periods in each year, from 9.00am until 5.00pm on Father’s Day;
d)the parties share in the transport of the child between their respective residences;
e)that in the event that the father does not comply with the terms of 31(c ) above, the child spend time with him on a supervised basis at a contact centre every second weekend;
f)that neither party denigrate or insult or allow any other party to denigrate or insult the other parent in the presence or hearing of the child; and that
g)the parents advise each other of any change in residency seven days before such change and contact each other within 24 hours in the event of serious illness or medical emergency involving the child.
The Mother relied upon her Affidavit filed 30 November 2012, and the Affidavit of Mr G, filed 20 November 2012, in addition to the material relied upon by the Independent Children’s Lawyer.

The Independent Children’s Lawyer

The Independent Children’s Lawyer sought[3] the following Orders:
a)all previous parenting orders in relation to the child be discharged;
b)the father’s Application filed 8 November 2010 be dismissed;
c)the child live with the mother;
d)the mother have sole parental responsibility for the child;
e)the father be restrained from filing or serving any further parenting application without first obtaining the leave of a court having jurisdiction under the Family Law Act 1975 (Cth).
[3] Annexure ‘A’ to the affidavit of Mr E filed by leave on 22 January 2013
At the commencement of the trial, Counsel for the Independent Children’s Lawyer confirmed that the father had not been given notice of the Orders sought by the Independent Children’s Lawyer. However, after standing down in order to enable material sought to be relied upon by the Independent Children’s Lawyer to be obtained, I was informed by Counsel for the Independent Children’s Lawyer that, during that break in proceedings, the Independent Children’s Lawyer’s office had spoken with the father and outlined to him the Orders sought. I was informed by Counsel that the father’s position remained that he did not intend to appear.
The Independent Children’s Lawyer relied on the affidavit material as set out in the List of Documents[4] handed to the Court by Counsel for the Independent Children’s Lawyer as well as documents obtained from the subpoenaed material.
[4] Exhibit ‘ICL1’ as amended such that Document 7 is the Affidavit of Dr M filed on 29 April 2011
Therefore, in addition to the affidavit material filed by and on behalf of the parties, I have had the benefit of the following :
a)three (3) Reports from the Department to the Court:
i)a Report dated 9 July 2010 (“the first Magellan Report”);[5]
[5] Exhibit 5(a)
ii)a Report dated 18 December 2012 (“the second Magellan Report”);[6]
[6] Exhibit 5(b)
iii)a Report dated 14 January 2013 (“the third Magellan Report”).[7]
[7] Exhibit 5(c)
b)four (4) Family Reports by Ms C:
i)Family Report dated 10 May 2010 (“the First Family Report”);
ii)Family Report dated 17 December 2010 (“the Second Family Report”);
iii)Family Report dated 13 August 2011 (“the Third Family Report”);
iv)Family Report dated 2 October 2012 (“the Fourth Family Report”).
c)a section 65L report, dated 12 April 2011, by Ms C (“the s 65L Report”).
d)a number of reports by Dr M (psychiatrist):
i)a report dated 28 April 2011 (“the first psychiatric report”);
ii)a report dated 28 July 2011 (“the second psychiatric report”);
iii)a report dated 9 July 2012 (“the third psychiatric report”).

Parental Responsibility

Section 61DA of the Act requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility (“the presumption”) for her.
The presumption does not, however, apply where there are reasonable grounds to believe that one of the child’s parents has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or has engaged in family violence.[8] Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for her parents to have equal shared parental responsibility for the child.[9]
[8] S. 61DA(2) of the Act
[9] Section 61DA(4) of the Act
The child’s father alleges that there have been inappropriate interactions between O (her half brother) and the child. He also alleges that the child was hit with a belt by her mother in May 2009. He says that after the child was interviewed by police he was told that her ‘dialect’ was all over the place and they could not find ‘concrete’ evidence that the child’s mother caused bruising to her. The child’s mother admitted that she had physically disciplined the children but the police considered that her actions were not inappropriate.
I am not persuaded, on the evidence before me, that the presumption does not apply in the present case. However, I am persuaded that the presumption is rebutted by the following evidence which satisfies me that it would not be in the child’s best interests for her parents to have equal shared parental responsibility for her:
a)the father verbalised threats to harm those he believed had harmed the child (who resided in the mother’s household);
b)during the time that the child lived with her father he failed to ensure that she spent time with her mother at a Contact Centre in the manner prescribed. This being an action which I consider demonstrates a complete lack of support for the child’s relationship with her mother and is indicative of a lack of recognition on his part of the importance to the child of both the involvement of her mother in her life and a continued relationship with her – without such recognition there is, I find, little prospect of communication of the kind necessary to make joint decisions between the child’s parents;
c)there is no evidence to support a finding that the father’s fixation on allegations that the child has been sexually abused whilst in her mother’s household (as discussed below) has ameliorated at all, or to any significant extent, such that it continues to be more probable than not that the child’s parents will remain unable to communicate about major long-term issues relating to her;
d)the father’s failure to attend before me demonstrates an unwillingness on his part to participate in the process at this time; and
e)there is no evidence before me to support a finding that the father has addressed the concerns identified by Ms C at paragraph 4.6 of the Fourth Family Report.
Further, if the Court makes an order that the child’s parents are to share parental responsibility for her and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to her, such order requires the decision to be made jointly by his parents: s 65DAC(2) of the Act. I am not satisfied on the evidence before me that the child’s parents could now make decisions about major long term issues in relation to her ‘jointly’.

Statutory matters relevant to parenting orders

The Making of parenting Orders

The statutory framework within which the Court exercises its power to make parenting orders is contained within Part VII of the Act. The objects of Part VII of the Act are to ensure that the best interests of children are met: s. 60B of the Act.
The Court’s power to make a ‘parenting order’ (as defined in s. 64B of the Act) is conferred by s. 65D of the Act. Section 65DA provides that the power to make a parenting order is subject to, inter alia, s. 61DA of the Act.
Given my finding that the presumption is rebutted on the basis that it is not in the child’s best interest for her parents to have equal shared parental responsibility, the power to make parenting orders pursuant to s 65D is “at large” but, of course, subject always to the best interests of the child being the paramount consideration: s 60CA; s 65AA.[10]
[10] Chalk & Plasto [2013] FamCAFC 48 at par 15-22
Section 60CC of the Act identifies those considerations (both primary and additional) which I must consider in determining what is in the child’s best interests.

Benefit to the child of having a meaningful relationship with each of her parents

The child’s mother considers it beneficial for the child to have and maintain a meaningful relationship with both of her parents. However, she asserts that until the Court can be satisfied that the child’s father is of sound mind and competency, the Court should act to ensure that the child is not placed at risk.
I agree with this assertion. I accept the evidence of Dr M and Ms C that the father continues to believe that the child has been exposed to inappropriate behaviours in her mother’s household and that her mother is a manifestly unsuitable parent (a belief which is not, I find, supported by the evidence). I find that the evidence at present does not support a finding that, were the father is to have time with the child, he would be able to engage in appropriate behaviour in her presence and act so as to shield her from the manifestations of his beliefs.
The benefit to the child of having an opportunity to continue to develop her relationship with her father is, at this stage, outweighed by the need to protect her, as discussed below, from exposure to his continued beliefs.

Need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

The first Magellan Report details Departmental involvement with the mother and father from July 2006 until July 2010. It contains the following relevant information:
a)a protection concern was received 21 July 2006 (which involved assertions about the mother’s deficiencies in parenting the child and her half brother) related, at least in part, to an incident which had occurred in April 2005 and which had been investigated by police with the result that no further action had been taken by them;
b)on 30 May 2009, (the day before the child was due to return to her mother’s care) a Child Protection Concern was received which involved allegations of inappropriate physical discipline of the child;
c)on 31 May 2009, additional concerns were reported that the child had disclosed that her eight year old brother had touched her inappropriately on the vagina and put his fingers inside of her when they were bathing together unsupervised;
d)on 1 June 2009, further additional concerns were reported which included allegations that the notifier had witnessed the child’s half brother engaging in sexually abusive behaviours toward other children;
e)on 3 June 2009, further additional concerns were received which involved allegations that the child had been physically disciplined by her mother and sexually abused by her half brother.
During the assessment undertaken by the Department, neither the child’s day-care Centre nor her brother’s school raised concerns about either child’s well being.
A police investigation into the allegations reported:
a)an unsubstantiated outcome and that the child did not disclose any child protection concerns;
b)there was no evidence to suggest that the child had suffered harm: her bruising was believed to have occurred at day-care when she fell off a bike, she told police that the bruising was from falling (and her day-care centre confirmed that she had fallen off her bike approximately two weeks before the notification of the concerns) and police believed that the bruising was only slight and consistent with normal childhood bruising;
c)that, whilst the mother admitted to smacking the child (and her brother), there was no indication that it was excessive or placed them at risk of harm.
In relation to the concerns outlined above, the Department recorded an outcome of ‘Unsubstantiated, children not in need of protection’ and concluded that there was no evidence of the child being harmed or at risk of harm in the her mother’s household.
The first Magellan Report also recorded that, on 28 September 2009, the following child protection concerns were recorded:
a)at a time when the child was swimming she complained of a sore vagina – the father’s partner looked at her vagina and ‘noticed a tear and some skin hanging’ and said that the child told her that her half brother (“O”) sticks his fingers and well as pencils and other things in her ‘moo moo’ (vagina);
b)the father took the child to hospital and also contacted police.
The first Magellan Report also notes that after the receipt of the concerns detailed above, a further five additional notified concerns were received on 7 October 2009, 7 November 2009, 4 February 2010, 22 February 2010 and 26 February 2010.
During the assessment undertaken by the Department into these concerns, the Departmental officer noted that:
a)whilst there was consistency of disclosures made by the child in relation to some core content of inappropriate sexual behaviours, there was very little particularisation of these concerns and the ‘core content’ appeared to be interchangeable and applicable to various people over time (first O, than J and finally D);
b)the lack of physical evidence and particularisation of concerns made it exceedingly difficult to establish with certainty or confidence that the child had sustained sexual abuse;
c)it was highly concerning that the child had knowledge around sexual acts which was not considered age appropriate and this suggested she had either experienced some form of sexual abuse or been exposed to sexual material;
d)whilst it was suggested during the assessment that the father may have been coaching the child (which may explain why these concerns continued to arise and the lack of particularisation by the child) there was limited evidence to support such an assertion;
e)it was possible that O (given his age) may have engaged in exploratory behaviours with the child which the father highlighted and pursued for family law purposes;
f)the child had been refereed to L Service for sexual abuse counselling and that agency (as well as Child and Youth Mental Health Service) highlighted concerns about the father’s presentation around this subject matter: namely, that he appeared to have become fixated on this material and concerns were raised in relation to his mental health status and the manner in which this impacted on his engagement with the child around the alleged sexual abuse;
g)when interviewed, the father displayed limited insight into the concerns raised;
h)the lack of external observations of behaviours described by the child’s father made it difficult to ascertain with confidence that the child was, in fact, experiencing the alleged emotional harm;
i)during the interviewing process, the child did not display any indicators or concern when relating to police officers and chid safety officers about the alleged sexual abuse but did link anxiety to the physical discipline in her home;
j)the child’s school highlighted concerns that the child’s father openly discussed the concerns about the child’s alleged sexual abuse in front of the child;
k)whilst the child presented with some anxiety around the physical discipline she received from her mother, there was very little information to confirm that she would be at risk of physical harm in her mother’s care;
l)the lack of particularity is such that it was not possible to confirm that the child had suffered sexual abuse;
m)the child was very difficult to interview with respect to the notified concerns.
The Department recorded an outcome of ‘Unsubstantiated, child not in need of protection’ in relation to the concerns notified for the child.
The second Magellan Report[11] notes that, on 26 July 2012, the Department recorded a Child Protection Notification on the basis of the information provided. This arose in the context of the child returning to live in her mother’s household in February 2011 as a consequence of an Order of this Court. This Report also considers concerns received from three separate notifiers on 11, 12 and 13 April 2012 in respect of the father and his partner’s mental health ‘issues’.
[11] Exhibit 5(b)
The Department performed an investigation and assessment and concluded that children in that household were at risk of emotional harm caused by neglect and both the father and his partner were identified as the parties responsible for this. Further concerns of domestic violence, prescription drug abuse by the father and mental health issues in relation to the father and his partner were recorded. Departmental records reveal that the father and his partner separated in approximately August 2012 and, consequently, the Department has had no direct involvement with him since that time.
In the third Magellan Report[12] the Department advises that an investigation and Assessment was undertaken in respect of the Child Protection Notification dated 26 July 2012. The outcome was recorded as ‘Unsubstantiated, child not in need of protection’.
[12] Exhibit 5(c)
This Assessment relevantly determined that:
a)there was no evidence to indicate that the child had experienced harm;
b)there was an absence of evidence that the child had been sexually, physically or emotionally abused by her mother;
c)the child had not made any disclosures of sexual abuse to the investigating officer and had not been observed to display any sexualised behaviours;
d)the child was observed to function well socially and her behaviour did not indicated any developmental regressions;
e)the child reported that she feels safe and secure in her home (with her mother) and she was not observed to exhibit any fear responses or agitation in her interactions with her half brother O;
f)the child reported that she feels able to seek help – she was able to articulate responsible adults from whom she could seek help and with whom she could talk if she had any concerns;
g)the child is of a an age where she can remove herself from danger;
h)the child was no longer reported to engage in ‘sexualised’ play;
i)the child reports she no longer has nightmares and sleeps well at night;
j)the child’s general disposition was observed to be consistent with a normal eight year old’s behaviour (being cognitively, socially and physically) as were her developments, responses and activities.
The Departmental officer concluded that the child was observed to display a number of concerning behaviours and disclosures that would indicate she has experienced sexual abuse or exposure to inappropriate sexual knowledge in the past at a time when she was living with her father. (my emphasis) The father was reported to have significant mental health issues in that psychological reports suggested a possible psychopathology (being a combination of interpersonal, affective and behavioural characteristics that relate to a personality disorder).
Further, Departmental records indicated that the father has a ‘disproportionate fixation on matters relating to sexual abuse’ and that the child has been inappropriately exposed to these beliefs, views and adult concepts.
The Department concluded that:
a)there was no information to indicate that the child was at an unacceptable risk of harm in her mother’s care on the basis of the assessments set out in the Report;
b)the child’s Mother was able to demonstrate sound knowledge of normal developmental behaviours (distinguishing between normal and appropriate childhood interactions and those that are sexualised behaviours and interactions), demonstrates a healthy attachment and positive view of the child, is a functioning parent who has engaged with previous parenting programs and has taken active practical steps and methods in acting protectively and acknowledges the risk and is preventative in her parenting;
c)the child’s mother is a parent who is willing and able to meet the child’s ongoing care and protective needs.
Further, in the first Family Report (the interviews for which occurred on 19 April 2010), Ms C noted, that the father told her that he had told a medical practitioner that he would put a hole in the head of the people who had hurt the child but said that he only made this statement to get something to happen – that he would not shoot them because he was no good to the child in jail.[13]
[13] Para 2.9 of Ms C’s Report dated 10 May 2010
I find that the making of such a threat is of significant concern. I consider that the explanation provided by the father to Ms C does not diminish the significance of the threat – any threat by one parent to harm the other must, I consider, be regarded as demonstrating a significant lack of parental capacity.
I accept the evidence set out above in paragraphs 49, 53, 56, 58 - 61. I find that the child is not at risk of harm while in her mother’s care. I find that the child’s mother demonstrates a healthy attachment to the child and is a functioning parent who has acted protectively toward her.
In contrast, I find that, should she spend unsupervised time with her father, the child is at risk of being exposed to his fixation on matters relating to sexual abuse and also to his views which are highly critical of her mother. Such exposure is not in her best interests.
Dr M’s report, dated 28 April 2011, notes that her perusal of the subpoenaed documents provided to her revealed, inter alia:
d)on 7 May 2009 the father threatened to step in front of traffic – was diagnosed with an adjustment disorder with a depressed and anxious mood and a somatoform pain disorder;
e)a medical practitioner withdrew his service to the father due to demanding and threatening behaviour, drug seeking and antisocial personality traits, noting that the father had been acutely suicidal about six months earlier and had been admitted to hospital for two days;
f)the father presented to a clinic threatening to ‘take people out’ and said that if the child wasn’t with him he would do something about it; that the only thing he could do was to kill the people who had hurt the child; that the child wanted him to kill the perpetrators; that if he had 25 years in jail it would be worth it, that he had put in place a Power of Attorney and the child would be looked after by his aunt;
g)when the Father was seen by Child and Youth Mental health Services (“CYMHS”) staff on 12 February 2010, the father had to be curbed from giving over inclusive reports about the alleged sexual abuse of the child, exhibited poor impulse control and difficulties with emotional regulation;
h)on 26 February 2010, the father presented at a Hospital under an Emergency Examination Order as a result of threats to harm the mother with a gun; he commented that the child had been waking up saying ‘I want them all dead’ - he was frustrated and concerned about the sexual abuse (alleged) of the child;
i)on 27 February 2010, the father was seen by a psychiatric registrar at the police station (as a result of the events outlined in 67(h) above) – when seen, he denied having made the threat and exhibited pressure of speech, mood lability and incongruence of mood and behaviour;
j)on 27 February 2010, an assessment with adult Mental Health Services included that he has ‘increasingly become preoccupied with intrusive thoughts and beginning to describe graphic details of [the child’s] abuse which was not substantiated by police report. Risk is increasing mental disturbance due to his high level of anxiety and hyper vigilant state.’…’he appears to be on the verge of becoming obsessional, complicated by his antisocial/narcissistic personality traits. Possibility of delusional disorder or paranoid personality disorder.’
k)in and around 28 October 2010, the father was reviewed by a Consultant Liaison Psychiatry Service during an in-patient admission for management of his ongoing headaches and associated seizures; the purpose of the psychiatric involvement was to sort out whether he had a major depressive or anxiety disorder which would benefit from treatment – it was noted that he had a background history consistent with underlying personality dysfunction;
l)the father was referred by L Service (to whom he had presented seeking therapy for the child) back to CYMHS because, amongst other things, his interviewing of the child was seen as being counter-productive to their therapeutic work – at this time it was noted that the father’s own mental health issues and level of functioning were of concern.
I accept that the matters outlined above occurred in the manner described in the documents provided to Dr M.
I accept Dr M’s evidence, as contained in her Report dated 28 April 2011, to the effect that, in terms of risk, the father has, in the past, expressed suicidality and also made threats of taking the law into his own hands. I accept her evidence that the concern is that he has interpreted the child’s nightmares as indicating that she wants the alleged perpetrators of sexual abuse killed. I find that there is an unacceptable risk to the child should she spend time with her father whilst he holds such views and acts so as to interpret her nightmares as expressing a desire that she wants him to kill someone.
Dr M interviewed the father on 14 July 2011. In her report dated 28 July 2011, she notes, from information provided to her by the father, that:
a)the reason he made the threat to kill the mother and others was that he was getting no help for the child, that he knew the consequences of saying that he was ‘going to blow their brains out’ but he was feeling desperate – he denied that he had ever intended any harm to anybody and explained his threat as a logistical procedure and said that he made the statement to get action; he said that it had been a manipulative device and that he would do it again in similar circumstances;
b)when he threatened to throw himself off a bridge it was a manipulative device and he never had any intention of doing so;
c)he remains convinced that the child was sexually abused in the care of her mother.
Dr M opined that the father’s history (as recounted by her in the Report) would not give rise to a concern and that there was no evidence of psychosis; she diagnosed an adjustment disorder with depressed mood and that whilst, ‘obviously’ he displayed a lack of judgment in the statements he had made, this did not necessarily indicate danger of physical violence. Given the totality of the evidence before me, I do not agree with this opinion.
Dr M interviewed the Father on 4 July 2012. In her report dated 9 July 2012, she notes, from information provided to her by the father, that:
a)he continues to harbour grave concerns for the child;
b)the child had said that her mother and partner watched pornographic movies in front of her;
c)the child would be best off with him;
d)Ms C was biased against him.

Dr McGuire opined that, at interview, the father did not exhibit a mood disorder, was not cognitively impaired and continued to rationalise suicidal and homicidal threats. She noted that there was no evidence of psychosis. She considered that he was expressing more paranoid beliefs probably as a consequence of litigation and judgments which he saw as being unfavourable to him. She considered his presentation to her was odd and unusual and noted his elaborate descriptions of alleged sexual abuse inflicted on the child and his step-daughters. She considered that his presentation confirmed an AXIS II diagnosis of personality disorder not otherwise specified.
Dr M agreed with Ms C’s recommendation that the father resume supervised time with the child. She agrees such time should be supervised initially.
I accept Dr M’s evidence, as contained in the report exhibited to the affidavit filed on 8 October 2012 that, at the interview for the preparation of that report, the father ‘continues to harbour grave concerns for’ the child and continued to rationalise suicidal and homicidal threats. I accept Dr M’s evidence that the father displayed an odd and unusual presentation and note her concern that he appeared to focus blame for his ‘current situation’ on past service providers.
Without evidence to support a conclusion that the child’s father has addressed, through appropriate treatment, the concerns identified by Ms C in the Family Reports she has prepared, I consider that there is an unacceptable risk to the child of exposure to both psychological and, perhaps, physical harm should any time she spends with her father occur other than under strict supervision.
Given the father’s past behaviours of threatening to kill the mother and members of her family, this option is one which is unlikely to be able to be facilitated. In any event, given the father’s decision not to appear to participate in the final hearing before me, there is nothing to suggest that he would attend at a Contact Centre if one could be found which would offer him such opportunity.

Additional considerations

Views expressed by the child

The child’s mother asserts that the child has expressed a desire to spend time with her father. I accept her evidence in this regard but find that such desire needs to be weighed against the imperative to protect the child from the risk of exposure to her father’s behaviours and beliefs that she has been the victim of sexual abuse whilst in her mother’s care.
In the s 65L Report, dated 12 April 2011, prepared by Ms C after five sessions with the child and her mother, Ms C noted that the child did not initiate any conversation regarding her father or his partner.[14] I accept the evidence of Ms C in this regard but am unable to determine the cause of such behaviour.
[14] Para 2.4 of Ms C’s Report dated 12 April 2011
In the third Family Report (the interviews for which occurred on 15 July 2011 and 8 August 2011 in circumstances and against the background outlined by Ms C in paragraph 1.2 of the Report), Ms C noted that the child told her that she did not want to see her father but wanted to talk to him on the phone.
In the fourth Family Report (the interviews for which occurred on 26 July 2012 in circumstances and against the background outlined by Ms C in paragraphs 1.2 and 1.3 of the Report) Ms C recorded that the Mother told her that the child had said that she would like to see her father again in the future and that the child had told her mother that she was somewhat worried that she would never see him again.[15] Further, the child had said that she would visit her father if the following rules applied for her father: ‘not be sick; have a smile; not talk about [J] – he’s in jail; I have to go back to mum’s’.[16] (my emphasis)
[15] Para 2.3 of Ms C’s Report dated 2 October 2012
[16] Para 3.2 of Ms C’s Report dated 2 October 2012
Ms C concluded that the child would prefer to have a relationship with her father but offered some preferred boundaries if this is to occur. I accept Ms C’s evidence and opinion in this regard.
I consider that the evidence establishes that the child wants to see her father but only in circumstances where he is able to restrain himself from discussing matters and where she can be confident that she will be returned to her mother’s care. Given the evidence outlined above, I am not persuaded of either of these “preconditions”.

Nature of the child’s relationship with her parents and other persons

The child’s mother asserts that the child has a very good relationship with her and the members of her household including her half-brother and the mother’s partner. She accepts that the child has a good relationship with her father which she says is demonstrated by the child wanting to spend time with him. I accept her evidence in this regard.
Ms C, whose evidence I accept, noted in the first Family Report (the interviews for which occurred on 19 April 2010), that:
a)the child interacted well with the father and his partner and the language used was at all times affirming and encouraging;[17]
b)when the child and the mother met (having not seen each other since September 2009 as a consequence, I find, of the father’s failure to facilitate time between them), their greeting was enthusiastic and positive, they spontaneously hugged each other and there was no sign of reluctance at all and the child asked if she could see her half brothers;[18]
c)it was clear that the child missed her mother, expressed affection toward her mother, brothers and step-father and did not exhibit any signs of fear or anxiety when she was interacting with them.[19]
[17] Para 8.2 of Ms C’s Report dated 10 May 2010
[18] Para 8.4 of Ms C’s Report dated 10 May 2010
[19] Para 9.2 of Ms C’s Report dated 10 May 2010
In the second Family Report[20] (the interviews for which occurred on 11 November 2010 and 29 November 2010), Ms C noted that despite not having seen her mother since the previous family assessment, the child quickly warmed to her mother, laughed and joked and conversed in a comfortable and warm manner, engaged with the mother’s partner in conversation and, after about 30 minutes, leapt over to him and gave him a huge hug – the entire interaction was characterised by warmth, affection and enjoyment[21] and concluded that, at that time, the child was a little girl who obviously adored her mother and missed her terribly.[22] I accept Ms C’s evidence and opinion.
[20] Exhibit “ICL3”
[21] Para 4.1 of Ms C’s Report dated 17 December 2010
[22] Para 5.2 of Ms C’s Report dated 17 December 2010
Ms C also opined, at that time, that the continuation of the current status quo (with the child living with her father and having no time or contact with her mother) would cause negative longer term consequences for the child.[23] I accept this opinion.
[23] Para 5.5 of Ms C’s Report dated 17 December 2010
In the Third Family Report (the interviews for which occurred on 15 July 2011 and 8 August 2011 in circumstances and against the background outlined by Ms C in paragraph 1.2 of the Report), Ms C noted that the relationship between the child and her mother was characterised by warmth, fondness and familiarity, that the child was spontaneously affectionate toward her mother and the mother was encouraging of the child but readily able to set limits if required.[24] I accept Ms C’s evidence and opinion.
[24] Para 2.10 of Ms C’s Report dated 13 August 2011
In the Fourth Family Report (the interviews for which occurred on 26 July 2012 in circumstances and against the background outlined by Ms C in paragraphs 1.2 and 1.3 of the Report) Ms C concluded that the mother and child’s relationship remained warm and positive and there was nothing problematic about their interaction.[25] I accept Ms C’s evidence and opinion.
[25] Para 2.11 of Ms C’s Report dated 2 October 2012
I find that the child has a warm and positive relationship with her mother and an established relationship with the members of her mother’s household including her sibling. I find it is more likely than not that the child’s relationship with her father is, at this point, strained given her expressions about the terms which would need to be met before she would want to see him.

Extent to which the child’s parents have taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and spend time and communicate with her

The child’s mother asserts that, prior to the Order made on 4 February 2011, she and the father shared parental responsibility for the child but that, since then, as a consequence of the order made that day vesting sole parental responsibility for the child in her he has not had any ‘input’ into decisions about the child. I accept her evidence in this regard.
I find that the child’s mother has demonstrated a commitment to participate in making decisions about major long term issues relating to the child and to spending time and communicating with the child.
I find that the child’s father has failed to demonstrate such commitment to spending time with the child since the making of the Order in February 2012.

Extent to which each of the child’s parents have fulfilled or failed to fulfil their obligation to maintain her

I find that each of the child’s parents fulfilled their obligations to maintain her during times she was in their respective primary care.
I accept the mother’s evidence that she has met all of the child’s needs and that the child has thrived in her primary care.

Likely effect of any changes in the child’s circumstances including the likely effect on her of a separation from parents or any other child with whom she has been living

I find that that if the child remains living in her mother’s household she will have the opportunity to continue to develop her relationship with her mother, step-father and half-brother. I find that such opportunity is beneficial to her and that it would be detrimental to her care and development for there to be any change to her primary care arrangements.
I accept the evidence of Ms C in the Fourth Family Report that the child’s emotional wellbeing was stable and positive[26] and I find that any change to her current living and care arrangements would, on the balance of probabilities, be likely to be detrimental to her.

Practical difficulty and expense of the child spending time and communication with a parent and whether this will substantially affect her right to maintain personal relations and direct contact with her parents on a regular basis

[26] Para 4.3 of Ms C’s Report dated 2 October 2012

There is nothing in the material to persuade me that, should the father address the matters outlined by Ms C in the Fourth Family Report, there are any difficulties of a practical nature which would necessarily substantially affect the child’s right to maintain personal relations and direct contact with her parents on a regular basis.

Capacity of the child’s parents to provide for her needs (including emotional and intellectual)

I accept the mother’s evidence that, whilst in her care, the child has done well at school. I find that the mother meets all of the child’s emotional and intellectual needs.
I accept Ms C’s evidence, as contained in paragraph 4.3 of the Fourth Family Report, to the effect that the child continues to progress in a positive manner, and is doing well at school both academically and socially. I accept Ms C’s evidence to the effect that ‘from my observations of her over the previous two years, her emotional wellbeing is stable and positive.’ Such wellbeing can only be as a result of the capacity of her mother to meet her emotional needs.
I find that the child’s mother has consistently expressed a willingness for the child to have and maintain a relationship with her father. Any reservations on her part have been, I consider, reasonably based given the father’s behaviour, expressed view and opinion of her parenting skills and his willingness to expose the child to his views about the same.
I find that the mother has told the child that she (the mother) wants the child to see her father but that he needs to feel better before this occur. I find this explanation as provided to the child in the circumstances of this case to be one which represents an attempt by her mother to support the child in a relationship with her father.
The child’s mother says that she was not provided the opportunity to spend time with the child when the child was living with her father, despite Orders of the Court which provided for supervised time at a Contact Centre to occur, because the child’s father failed to provide her for such time. I accept her evidence in this regard.
I accept the evidence of Ms C that the father’s explanations of his failure to facilitate time between the child and her mother when the child was living with him to be indicative of ‘someone who lacks a full appreciation of the importance (for his daughter) of having a positive relationship with her Mother.’
I find that the father’s view, as expressed to Ms C, that, whilst in his primary care, the child did not want to see or speak with her mother, to be an example of his incapacity to appreciate the importance to the child of maintaining a relationship with her mother. I also find that it is clear evidence of an inability on his part to support a relationship between the child and her mother.
I note that in the second Family Report[27] (the interviews for which occurred on 11 November 2010 and 29 November 2010), Ms C records that:
d)when asked about her surname (which Ms C told her she thought was ‘[McCornish-Grable]’), the child explained that her daddy told her it was ‘just [Grable]’;[28]
e)the Father said that he had told the child that she can decide if she wants to see her mother.[29]
[27] Exhibit “ICL3”
[28] Para 4.2 of Ms C’s Report dated 17 December 2010
[29] Para 5.1 of Ms C’s Report dated 17 December 2010
I accept that Ms C has accurately recorded what both the child and the father said to her during the interviews on that occasion. I find that the actions of the father as recounted above demonstrate a willingness to attempt to exclude the child’s mother from her life and demonstrate an incapacity on his part to recognise the importance to the child of the maintenance of a relationship with both parents. I find that his actions in telling the child at that time and at her age that she could decide if she wanted to see her mother amounts to a complete abrogation of his responsibility to foster and encourage the child’s relationship with her mother.
In the Second Family Report, Ms C concluded that the father and his partner presented as disingenuous individuals who had undertaken few of the recommendations offered in the previous report. I accept her evidence and opinion in this regard.
In the third Family Report (the interviews for which occurred on 15 July 2011 and 8 August 2011 in circumstances and against the background outlined by Ms C in paragraph 1.2 of the Report), Ms C noted that the child told her that her father had told her not to hug her mother because she (the mother) might take her (the child) away.[30] I accept that Ms C has accurately recorded what the child told her during this interview. I find this to be another example of the father’s incapacity to manage the child having (or wanting to have) a relationship with both of her parents.
[30] Para 3.4 of Ms C’s Report dated 13 August 2011
I note that Ms C records, in the third Family report, that the father gave her a demonstration of a crude sign for an act of sexual intimacy (as described in para 4.15 of the Report). I accept that Ms C has accurately recounted the father’s actions during the interview. I consider that such behaviour, together with his comments, provides a clear basis for the conclusion reached by Ms C, that the father remained, at that time, ‘highly focused, possibly obsessed with the graphic detailing of sexual behaviour that [the child] has allegedly experienced’[31] I find that it is more likely than not that there would be a detrimental impact on the child’s functioning if she was exposed to such uncontained ‘graphic detailing’.
[31] Para 5.1 of Ms C’s Report dated 13 August 2011
In the fourth Family Report (the interviews for which occurred on 26 July 2012 in circumstances and against the background outlined by Ms C in paragraphs 1.2 and 1.3 of the Report) Ms C noted that, when the father attended on 28 June 2012 (the day before the day on which the interviews were initially scheduled to occur) he spoke quite loudly in the waiting area about the details of the child’s alleged sexual abuse – his tone and volume was so loud and aggressive that another client in the waiting room became distressed and he was asked to move outside to continue his telephone call.
I accept Ms C’s evidence about what happened that day. I find that the father’s behaviour is a clear example of an inability on his part to curtail the expression of his views. I find that it is more likely than not that he would be unable to curtail the expression of such views in the child’s presence.

The child’s maturity, sex, lifestyle and background and any other relevant characteristics

The evidence relevant to this factor is considered by me throughout these Reasons.

The child’s parents’ attitude to her and the responsibilities of parenthood

In her report dated 17 December 2010, Ms C says:
The lack of meaningful developments in this matter is both disappointing and enlightening. Having been encouraged to ensure [the child] receives self-protection education and attend counselling, [the [father]] has not done so. His excuse of ‘there was a tennis match between …’ is rather inadequate and speaks to broader attitude of disregard for this process.
I accept Ms C’s evidence in this regard. I find this to be an example of the father’s incapacity or unwillingness to ensure, whilst the child was in his primary care, that she receive assistance that would have been beneficial to her.
I accept that the evidence establishes that the child’s mother has demonstrated a positive attitude to the responsibilities of parenting. She has been prepared, where necessary, to seek out support and assistance from the Department and has engaged with the Department in the course of its investigative processes. She has demonstrated an acceptance of the need to maintain vigilance in her home and I accept that she is very alert to the interactions of the child and her half-brother when they are in her home.
In the Fourth Family Report, Ms C considered that:
a)the mother had undertaken appropriate measures to address various issues;[32] and
b)the mother is not opposed to the child spending time with her father but appropriately believes it should occur within a context that facilitates the chikld’s personal and emotional safety.[33]
[32] Para 4.1 of Ms C’s Report dated 2 October 2012
[33] Para 4.2 of Ms C’s Report dated 2 October 2012
I accept the evidence of Ms C in this regard and find that the child’s mother is very aware of the importance to the child of having an on-going relationship with her father provided this can occur in a manner where the child’s functioning is not disrupted or put at risk.
I find that the child’s mother has a warm and positive attitude toward the child.

Any family violence involving the child or a member of her family

I have earlier discussed and considered the mother’s physical disciplining of the child and the father’s actions in threatening to kill the child’s mother and members of her household and I do not intend to repeat such discussion again.

Whether it would be preferable to make the order which would be least likely to lead to the institution of further proceedings in relation to the child

The child’s mother asserts that the order she seeks is that which is least likely to lead to the institution of further proceedings in that, on her case, the father has mental health issues that may well result in the further instigation of proceedings if the child were to live primarily with him. I accept this assertion.

The order sought by the mother provides a mechanism whereby the child’s time with her father could recommence - namely by his attendance to the matters outlined in Ms C’s final Family Report and the matters particularised in the terms of the order itself. There is a certain attractiveness to this proposal in that it may increase the prospect that the child’s time with her father could recommence without the necessity of further proceedings in the Court.
However, for the reasons already outlined, I am not persuaded that it is in the child’s best interests to spend time with her father until the matters identified by Ms C have been addressed. I am not persuaded that it is in the child’s best interests that orders be made completely in the terms sought by the mother.

Other relevant matters

In the Fourth family Report, Ms C recommended that:
c)if the father is able to convince the Court that he will engage in appropriate behaviour when with the child and that he will commit to actually presenting at any scheduled visits, the child should have supervised contact with him for no less than six months and, if this progresses well and his emotional and physical well-being remains intact, time should be extended to include telephone contact;[34] (my emphasis)
d)if supervised time and telephone contact progressed well, the child spend unsupervised time with her father but, if this extends to overnight time, this should only occur if he and his partner live in a bigger house.[35] (my emphasis)
[34] Para 4.6 of Ms C’s Report dated 2 October 2012
[35] Para 4.7 of Ms C’s Report dated 2 October 2012
Having interviewed the parties on a number of occasions, Dr M agreed with Ms C’s recommendation that any time the child was to spend with her father should initially be supervised.

Conclusions

I am not persuaded on the evidence that the child’s father will either engage in appropriate behaviour when with the child or will present at scheduled visits. I am not persuaded that the child’s father will commit to actually presenting at any scheduled visits.
In the absence of any evidence addressing the concerns raised by Ms C I am not persuaded that it is currently in the child’s best interests that she spend time with her father and I do not propose to make an order for the same. Further, given the threats made by the father in the past to kill the child’s mother and the matters already outlined and discussed above, I consider that until there is clear and cogent evidence to establish that the father has addressed the matters identified by Ms C and is capable of refraining from exposing the child to his view about alleged past inappropriate behaviours and his views about the mother, it is not in the child’s best interests to spend time or communicate with him.
Until there is evidence to support a conclusion that the Father has addressed, through treatment of the appropriate kind, the matters identified by Ms C at paragraph 4.6 of the Fourth Family Report, I consider, on the basis of the findings and reasoning contained within paragraphs 85, 88, 92-94 and 110 of these Reasons, that it is in the child’s best interests that her mother have sole parental responsibility for the major long term issues relating to her.
Having regard to the matters discussed above, I consider that it is in the child’s best interests that an Order be made in the terms outlined at the commencement of these Reasons.

The order sought pursuant to s. 118(1) of the Act

I find that the Father was informed by the office of the Independent Children’s Lawyer on 22 January 2013 that the Independent Children’s Lawyer intended to seek an Order in the terms of paragraph 5 of the Minute of Order annexed to Mr Emerson’s affidavit.
I am satisfied that the Father was aware that such an Order was to be sought before me and that, despite this knowledge, he determined not to appear.
Section 118 of the Act relevantly provides that the Court may, at any stage of proceedings under the Act if it is satisfied that the proceedings are frivolous or vexatious, if it considers appropriate, on the application of a party to the proceedings, order that the person who instituted the proceedings shall not, without leave of the Court having jurisdiction under the Act, institute proceedings of the kind specified in the order.
I consider the law, relevantly, to be as follows:
a)it is a condition precedent to the making of an order restraining a person without leave of the Court from instituting proceedings that the Court must first be satisfied that the proceedings before it are frivolous or vexatious[36];
b)the power to make such an order must be used sparingly, it being a serious thing to keep a person from access to the Court.[37]
[36] DJC v SJS and Another (2005) 24 FamLR 329 at 338 and 339
[37] Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 per Kirby J at 31-32
Given that:
a)there was previously an Order that the child live primarily with her father and have supervised time with her mother; and
b)this arrangement only ended as a consequence of the Order made by Bell J on 4 February 201; and
c)the father participated in the proceedings including when he determined not to appear; and
d)only the current Application before the Court required a hearing (previous Orders having been made by consent); and
e)this is not a matter in which there have been a large number of interim applications unsuccessfully prosecuted by the father;
I am not satisfied that the proceedings before me are frivolous or vexatious.
Consequently I do not propose to make the Order sought by the Independent Children’s Lawyer in paragraph 5 of the Minute of Order annexed to the affidavit of Michael Emerson.

I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 May 2013.

Associate:

Date: 10 May 2013

[2013] FamCA 328

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Procedural Fairness

Jurisdiction