Grandhouse and Grandhouse

[2016] FamCA 379

FAMILY COURT OF AUSTRALIA

GRANDHOUSE & GRANDHOUSE [2016] FamCA 379

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Application by the father for summary dismissal of the mother’s Initiating Application – Where the mother seeks to vary final parenting orders – Where the orders were subject to an appeal by the mother which was subsequently dismissed by the Full Court –Where the orders provided for the mother to seek a variation but subject to her meeting specific conditions –Where the Court finds that the mother has not provided any evidence as to her compliance with those orders – Where the Court finds the application has no reasonable likelihood of success and amounts to an abuse of process under rule 10.12 of the Family Law Rules 2004 (Cth) – Orders made summarily dismissing the mother’s Initiating Application.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 10.12

APPLICANT: Mr Grandhouse

RESPONDENT: Ms Grandhouse

FILE NUMBER: SYC 4942 of 2015

DATE DELIVERED: 20 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 17 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Friedlander

SOLICITOR FOR THE APPLICANT: Aubrey Brown

FOR THE RESPONDENT: Ms Grandhouse in person by telephone link

Orders

1. The mother’s Initiating Application filed on 17 September 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grandhouse & Grandhouse 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 SYDNEY

FILE NUMBER: SYC 4942 of 2015

Mr Grandhouse

Applicant

And

Ms Grandhouse

Respondent

REASONS FOR JUDGMENT

The proceedings

1. The parties to these proceedings, Mr Grandhouse and Ms Grandhouse, have been locked in litigation concerning their son since December 2006.  The parties’ child is B (the child), who was born in 2005 and is currently ten years of age.

2. On 16 September 2010 Le Poer Trench J delivered judgment and made orders which provided, inter alia, that the child live with the father and that he have sole parental responsibility.  The orders provided that the child spend time with the mother for a minimum of two hours each week under professional supervision.  These orders contained the following notation:

   (A) It is recommended that the mother consult with a psychologist of her choice for the purpose of undertaking a course of therapy which will give her insight into the impact upon the child of her actions in having him investigated for physical and sexual abuse.  Further the therapy should address providing the mother with strategies to deal with any adverse statements which the child might make to the mother relative to the father or his family.

3. Order 17 of 16 September 2010 provided as follows:

   17.    The mother may seek a variation of the orders, so far as they relate to the time and circumstances in which she sees the child, at the conclusion of a course of therapy which addresses the matter referred to in notation (1) [sic] and which has been conducted for a period of not less than 12 months at frequency of therapy sessions set by the therapist.  A further condition is that the therapist is able to provide to the mother, for production to the Court, with a report which may satisfy the Court that the child would not be at risk of the type of behaviour which led to the orders being made herein for the reasons set out in the judgment provided.  The therapist providing such report is to have first been provided, by the mother, with a copy of these orders, a copy of the judgement of the Court and a copy of the report provided by Dr C, the Court expert.

4. The mother appealed against the orders of 16 September 2010.  Her appeal was dismissed by the Full Court on 3 February 2012 and the mother was ordered to pay the costs of the father and the Independent Children’s Lawyer.

5. On 12 November 2012 the mother filed an application in the Federal Circuit Court.  This application was dismissed on 6 May 2013, in circumstances which were not revealed with any clarity in the material before me.  In his affidavit of 9 March 2016 the father deposed:

   I say that the Orders of the Federal Circuit Court of Australia made the 6^th of May 2013 arise out of an application that had been made by the Mother notwithstanding her having not complied with Order 17 of the Orders of the 16^th of September 2010 which are and remain the relevant final Orders in these proceedings.

6. In May 2013 the mother moved to Perth, with the father and the child continuing to live in New South Wales.  The father has arranged for telephone contact between the child and the mother and for supervised time in Perth.  The father, who is a pilot, has met the costs of the child’ travel to Western Australia on these occasions.

7. On 17 September 2014 the mother filed an Initiating Application in the Family Court of Western Australia.  She sought the following orders:

   1.Unsupervised overnight contact with [B] D.O.B. …2005

   2.Phone contact with [B] as specified by the court.

   3.The Child [B] born … live with me the mother, [Ms Grandhouse].

   4.That I the mother, [Ms Grandhouse] have sole parental responsibility for the child, B born … 2005.

   5.The father, [Mr Grandhouse] D.O.B. …1970 have supervised contact with the child, [B] born … 2005.  This supervised contact to be one weekend every 2 months by Relationships Australia.  Two hours on a Saturday and two hours on the Sunday.

8. On 17 September 2014 the mother also filed a Notice of Child Abuse or Family Violence (or Risk).  In this Notice she asserted as follows:

   1.[Mr Grandhouse] was charged twice for assault on me the mother, [Ms Grandhouse].  One charge was at [D Street, Suburb E] 29/01/05 by the WA Police.  The other charge was by the [Suburb F] NSW Police in relation to the assault on me at [Suburb F] Sydney.

   2.I [Ms Grandhouse] was assaulted throughout my pregnancy by [Mr Grandhouse].  I had 3 hospital admissions due to the violence.  Two at [G Hospital] WA, 16 April 2005 and 19 June 2005 and [H Hospital] NSW 29 October 2005.

   3.On 29 October 2015, [Mr Grandhouse] assaulted me the mother, [Ms Grandhouse] when I was 38 weeks pregnant with B D.O.B. …05.  An unborn child at risk of harm was filed by the hospital where I was taken.  the child was very active during and after the assault.

   4.On 12/01/07 [Ms I] did a Clinical Psychological Assessment Report and [sic] 25/06/07.  I saw [Ms I] up too [sic] October 2008.  [B] was seen by [J Hospital] 22/10/07, 24/10/07 and 25/10/07.  My family General Practitioner took out a Mental Health Care Plan for the child on 01/11/07.  [Ms I] spoke with [Mr K] at [J Hospital] and recommended I seek medical assistance in relation to the child self-harming and self-induced vomiting when he saw his father amongst other behaviours.

   5.[B] was returned to me in October 2008 with unexplained bruising on his body and to his face.  [The child] had a watery substance coming from his nose, a cut on his lip, black eyes;  ‘lip swollen, r ring finer [sic] has sublingual haematoma, has bruises.’  [The child] was very unsettled until he came to the mother, [Ms Grandhouse] from his father, [Mr Grandhouse].  The Doctor’s had closed.  I took the child [B] to the [L Hospital].  Due to the history of family violence, [L Acute care] were managing my case of domestic violence since 12 weeks after the child birth through [Suburb M] Community Services, strangulation marks on the neck had been noted by my case manager on my neck, the police were called.  Photos by police were later taken.  I also saw my family General Practitioner, after she tried to make contact with the relevant department DOC’s.  No evidence was produced at court by the police.

   6.[B] was returned from New Zealand after a period away with his father and family members in New Zealand.  I was flying my daughter back to Perth.  [B] had blood in his faeces and was screaming when he had to go to the toilet and holding onto his behind.  I took the child to the doctor who referred me to take the child to [N Hospital], where the child was assessed by [Dr O], October 2009.

   7.[B] was seen by JIRT [P Town] on 06/11/09.  Body map the child said “Daddy don’t punch me”.

   8.[B] made a disclosure “Daddy put hiss [sic] poo poo’s in my wee wee’s (16 min 11 sec).  The police noted F 46905 “This referral has been accepted by JIRT as it meets the following JIT criteria for sexual abuse.  (Accept) Disclosure of Sexual Assault.

   9.[B] was interviewed by JIRT Central Coast in a 42 minute interview on 22/02/10.  (Appeal Book Pg. 515-516)  B said “Daddy touches penis’ ‘Touches me on the bottom’ ‘Make feel sore’ ‘Inside bottom’

   10.[B] disclosed further sexual abuse, on 01/03/10.

   E40756067 [Suburb Q] Police

   Actual Sexual Offense – Assault

   Sexual Assault

   Verified – Accepted

   Sexual Abuse Related

   Child Abuse Related Sexual

   Sexual Intercourse – Anal Only

   Trauma.

   11.I was assaulted throughout my time with [Mr Grandhouse] from 16 March 2003 to 2 September 2006.  These assaults not limited to above included, attempted strangulation, attempted suffocation, removal by force of my french acrylic nails, hits to the head, thrown against walls, beaten down of [sic] the bathroom door when I retreated there and locked the door after a violent assault and other means.  These assaults happened in the presence of my children.  I [Ms Grandhouse] was physically and sexually assaulted throughout this time;  I defended myself on these occasions.  On 16 March 2003, I was admitted to [R Hospital] with hydrocephalus after being thrown against a wall, overheard by a neighbour who came to help.  After [Suburb F] I had hydrocephalus.

9. On 21 May 2015 the Western Australian proceedings were transferred to the Family Court of Australia at Sydney.  On 30 November 2015 a Registrar made orders which included the following:

   Upon application to the Court it is ordered, directed and noted:

   …

Documents to be filed

4.

The Applicant must file and serve within 28 days the following;

·     A current Notice of Address for Service

·     Any affidavit that the Applicant seeks to rely upon in providing evidence going to the outstanding issues.

1. The mother has filed only an affidavit which she swore on 19 April 2016 pursuant to this direction.  I will set out the contents of this affidavit in full:

   1.     I have resided now in Perth Western Australia for a total of 35 years.  My daughter [Ms S] aged 21 years old resides in Perth Western Australia and has done so since birth.  I have attended University in Perth since returning to Perth.  I live in a comfortable abode and have reliable transport.  I have a strong support network of my daughter and family friends.

   2.     The viewpoints of society has changed and continues to change on the stance on Domestic Violence in our communities.  I was subject to extensive Domestic Violence from [Mr Grandhouse] as confirmed by the Courts in the Criminal Jurisdiction.  I remained single and will do so.

   3.     Supervision is not ideal in many circumstances.  I have been supervised since 1 April 2010.  Supervision has been by a number of means.  First and foremostly by an approved supervisor by choice of me the mother.  the child is not responding well to supervision and it is not responding well to me the mother.  Lengths of supervision is limited due to the unnatural environment that it puts the party in.

   4.     I would seek to have supervision move to unsupervised contact with my son in the short term to long term.

   5.     As for the cost order, I am on a Health Benefit Card as I complete my studies  See Annexure ‘A’.

   6.     I have made considerable contributions to the community and continue to do so to further benefit my life and the lives of others.

   7.     I would seek leave to file an initiating application.

Consideration

1. The orders of 16 September 2010 remain in force, the mother’s appeal having been dismissed on 3 February 2012.  Accordingly the mother is bound to provide evidence as prescribed by Order 17 thereof, if she is to seek a variation of such orders “so far as they relate to the time and circumstances in which she sees the child.”

2. The basis of Order 17 was set out in the judgment of 16 September 2010 in the following terms:

   1144.The evidence of [Dr C] suggests to me that the mother would need to work with w [sic] therapist for not less than 12 months before a likely change may be evident in the mother’s thoughts and parenting approach which led to the necessity to impose such a significant order for her time with the child to be closely supervised

   1145.I propose to give the mother the opportunity to return to the Court to seek orders changing the time and nature of the time she spends with the child after she has undergone 12 months of therapy and in the event of her securing from her therapist a report which may be provided to the court and which states an opinion that the mother has responded to the therapy and is unlikely to exhibit the type of parenting towards the child which fell for criticism in these reasons.

3. By her Application filed on 17 September 2014 the mother sought inter alia that the child live with her and spend only supervised time with the father.  This regime would bring about a dramatic change in the child’ living arrangements.  In my view, the mother’s application for a change in primary residence is caught by Order 17, in that she seeks a complete alteration to “the time and nature of the time she spends with the child”.

4. In her affidavit of 19 April 2016 and her oral submissions the mother indicated that she wishes for the child to commence spending time with her on an unsupervised basis.  She has failed completely to adduce any evidence of the kind prescribed by Order 17 of 16 September 2010.

5. She is required to adduce evidence that she has attended therapy for twelve months and to produce a report which addresses risk to the child as a consequence of her behaviour.  A further requirement of Order 17 is that such a therapist must have been provided with the orders and judgment of 16 September 2010 and a copy of the expert report of Dr C.  The affidavit of the mother addressed none of these requirements.  The mother said in her submissions that she has “had extensive counselling” but that statement is not evidence and fails to satisfy the requirements of Order 17.

6. I would be prepared to summarily dismiss the mother’s application of 17 September 2014 solely on the basis of non-compliance with Order 17 of 16 September 2010. In my view, however, Rule 10.12 provides an additional ground for summary dismissal. This Rule provides as follows:

   RULE 10.12 APPLICATION FOR SUMMARY ORDERS

   10.12    A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

   (a)the court has no jurisdiction;

   (b)the other party has no legal capacity to apply for the orders sought;

   (c)it is frivolous, vexatious or an abuse of process; or

   (d)there is no reasonable likelihood of success.

7. The mother’s Notice of Child Abuse makes absolutely clear her intention to regurgitate allegations and issues which were raised in the trial which resulted in the judgment of 16 September 2010.  In my view, the mother confirmed this intention during her oral submissions.  She said, inter alia, words to the following effect:

   ●       “[the father] has raped and beaten my son”

   ●      “I have been silent about my son being raped and beaten”

   ●      “I have spoken to Malcolm Turnbull and Rosie Batty”

8. Nothing in the evidence adduced or submissions put by the mother indicated to me that she has reasonable prospects of success in relation to her application of 17 September 2014 or her foreshadowed proposal that the child spend unsupervised time with her. Further, she has indicated clearly that she proposes to revisit allegations and issues which have already been canvassed by the Court. In my view, such an exercise would constitute an abuse of process for the purposes of Rule 10.12.

9. In my opinion, the father and the child should not again be subjected to litigation concerning these allegations.  The mother said during her submissions words to the effect:  “the expenses may have gone over $1,000,000.”  If the mother is permitted to proceed with her application, the father will incur further costs and almost certainly suffer further stress.  the child will be subjected to involvement in another assessment by a single expert and, most probably, suffer stress due to uncertainty concerning his future living arrangements.

10. For all of these reasons, I will dismiss the mother’s Initiating Application filed on 17 September 2014 on a summary basis.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 20 May 2016.

Associate: 

Date:  20 May 2016