HANES & WALSINGHAM

[2013] FCCA 312

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANES & WALSINGHAM [2013] FCCA 312

Catchwords:
FAMILY LAW – Whether party should be granted leave to file an application initiating a further proceeding – earlier order that no further applications be filed save by leave – leave not granted. 

Legislation:  

Family Law Act 1975 (Cth)

Applicant: MS HANES

Respondent: MR WALSINGHAM

File Number: DGC 2412 of 2007

Judgment of: Judge Burchardt

Hearing date: Not applicable

Date of Last Submission: Not applicable

Delivered at: Melbourne

Delivered on: 4 June 2013

IT IS NOTED that publication of this judgment under the pseudonym Hanes & Walsingham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

DGC 2412 of 2007

MS HANES

Applicant

And

MR WALSINGHAM

Respondent

REASONS FOR JUDGMENT

(Ruling)

1. On 15 June 2011, I made final orders by which I disposed of the then most recent tranche of litigation between these two unfortunate parties.  That litigation commenced in October 2010.  They have been litigating since 2004.  I will return to my earlier Reasons for Judgment in due course. 

2. Relevantly for these purposes, I made orders that the orders made on 16 December 2009 remain in full force and effect, that neither party be permitted to file any further application without the prior leave of the Court and that otherwise all extant applications be dismissed.

3. The order that neither party be permitted to file any further application without the prior leave of the Court was made on the application of the Independent Children's Lawyer.  The Independent Children’s Lawyer had submitted in the strongest terms that all litigation between these parties must cease in the best interests of the children, who are at serious risk of being harmed by yet more Court involvement.

4. The materials that the parties have filed from time to time now occupy two full box files and concern two children, [X], born [in] 1996 and [Y], born [in] 2000.  While it would be possible to go back to yet earlier material, it is sufficient in my view to refer to what the mother has said in her affidavits in the 2010 to 2011 litigation.  In her first affidavit filed on 6 October 2010, the mother raised at paragraph 3 an assertion that [Y] had regularly been physically assaulted over the previous two and a half years by her grandmother, Ms W.

5. The affidavit annexed what purported to be unscripted spontaneous correspondence from both [Y] and [X] to their father, in which it was asserted that the children did not wish to see him.

6. The father had filed a Contravention Application on 20 September 2010 which I heard and determined on 8 October 2010. In my Extempore Reasons for Judgment, I referred to the fact that the mother had previously alleged that the grandmother had been assaulting [Y] for some two and a half years. She had also asserted in the contravention proceedings that on occasion [Y] did not wish to visit her father. 

7. The Court ordered a family report by Ms H which was dated 22 February 2010. It is clear from what the children told Ms H that they did wish to spend time with their father. I note that in paragraph 36, Ms H said:

   “[X], aged 14 and [Y], aged 11 are overwhelmed with sadness, frustration and a sense of being pawns in a very nasty battle between their parents in which they are centre stage.  They are in danger of developing mental health issues because of this, and indeed this Family Consultant advised them on each occasion they have spoken with her of Kids Helpline and the opportunity of speaking to counsellors at school.”

8. The family report went on to recommend, relevantly at paragraph 48:

   “… In the absence of these parental skills and attitudes, [X] and [Y] need the Court to reaffirm the parenting arrangements that are deemed to be most protective of their wellbeing.”

9. In a further affidavit filed on 17 February 2011, the mother relevantly referred to the children’s wishes and said:

   “… I will respect the childrens wishes as this is in the best interest of the children, and have throughout this seven year process which has let to contraventions.”

10. As earlier indicated, I gave judgment in the matter on 15 June 2011.  I refer to and incorporate by reference the whole of those Reasons for Judgment.  At paragraphs [17] and [21], I referred to the fact that the large majority of the mother’s material related to matters that preceded the orders made in 2009.  I also noted the report of Ms H in some detail and her recommendation that “litigation between Mr Walsingham and Ms Hanes be kept to a minimum and that there be serious thought to the impact of this on [X] and [Y].”

11. Counsel for the Independent Children's Lawyer’s submissions are paraphrased at paragraphs [56] to [59] of my judgment and in particular at [59] in the following:

    “… He submitted that this continuing litigation is contrary to the children’s best interests and that both parties are vexatious litigants who should be stopped.  He sought that no further applications to the Court be permitted without leave of the Court.”

12. I accepted the force and validity of that submission.  At paragraph [73], I said:

    “The children have loving relationships with each of their parents.  Their relationships with the father’s parents seem more opaque.  It does appear that [Y] has reported being struck by their paternal grandmother despite the father’s denials that this could have taken place.  Noting that [X] is over six foot tall and that [Y] is already 11, the capacity of the paternal grandmother to inflict physical violence on the children must be open to question.  More to the point, the children still want to see their father at his parents’ home at least every third weekend.  One approaches any reservations the children have about their grandparents and/or indeed their father with this qualification well in mind.”

13. At paragraph [83], I said:

    “The orders I propose to make will be least likely to lead to the institution of further proceedings.  That is not because I think that the precise form of orders made as to the parenting orders is more or less likely to provoke further litigation.  Unless restrained, these parties will litigate until the youngest child reaches 18 in any event.  The reason that the orders I will make are less likely to lead to further litigation is because I propose to make the order limiting further applications that the Independent Children's Lawyer has sought (s.60CC(3)(1)).”

14. At paragraph [95], I said:

    “… plainly the best interests of the children are the paramount consideration and in the circumstances of this case where, absent further control, the children will be subjected to more and more Court applications with all the associated trauma already noted by Ms H, it is clearly desirable that I make the orders sought.”

15. In those circumstances, I concluded that it was appropriate to make the order which has given rise to the application now before the Court.

16. Clearly, because of the order made, Registry has referred the material that Ms Hanes now seeks to file to me.  By her purported Application in a Case, Ms Hanes seeks orders that:

    “1.    That the children do not attend the fathers/grandparents house for sleepovers/access, weekend; and that

    2.  Leave be granted to file initiating application.”

17. The Initiating Application itself seeks:

    “1.    That the father spend time with the children on either Saturday or Sunday every second weekend. 

    2.    That the father meet the children every week on a mutual decided afternoon after school at 3.10 pm til 7 pm.”

    Interim or procedural orders sought:

    “1.    That the children do not sleep over at the Fathers/grandparents house in [omitted].”

18. The mother also seeks to file a Notice of Child Abuse.  It alleges an assault on [X] on 21 April 2013.  Put at its highest, it is asserted that the grandmother “flicked [X] with a backhand and the end of her fingers which stung and to which [X] immediately returned this flick then grandma did it again and grabbed [X]’s fingers crushing them so tightly [X] was in so much pain as her rings were digging into her fingers and resulted in bruising.”

19. The Notice goes on to complain that the grandmother smacks [Y], although nothing is said by way of timing. 

20. The Notice asserts that the police attended on this occasion and assisted the children to recover their possessions.  It asserts that the children are very unhappy about visiting their grandparents.

21. The Affidavit sought to be filed in support – is in very similar terms to the Notice of Child Abuse.  It is also asserted that [Y] had told her father on 22 April 2013 that she does not wish to see him again. 

22. The terms of the Affidavit speak for themselves save that I note that it is asserted that although the grandmother presents as a small, elderly woman, she is nonetheless very strong and when she grabs the children it really hurts them and leaves red marks on their skin.  The Affidavit asserts that the children experience anxiety at the grandparents’ home (where the father also lives). 

23. The Affidavit repeats a considerable number of matters of purely historical interest. 

24. The Affidavit exhibits what purport to be statements from the children.  One of them goes back to 2010 and the most recent dated one, May 2013, is not signed by [Y], although it purports to be from her. 

25. I note that [Y] will turn 18 in a matter of weeks.  Given the Court’s current listing timetables it would be impossible to obtain a s.11F report before then in any event. 

26. I note that the material suggests that it has always been [Y] who has allegedly been less eager to spend time with her father and with whom the difficulties with the grandmother are said predominantly to occur. 

27. The order made prohibiting the filing of further applications save by leave of the Court was made to assist the children.  It was clearly in their best interests.  Taking the materials filed by the mother as a whole, they are merely a repetition of matters repeated by her over and over again throughout the years. 

28. Notwithstanding the incident reported on 21 to 22 April 2013 (which looked at that objectively seems fairly trivial), I do not think it is in the children’s best interests to have yet further litigation and curial involvement. 

29. Given that the children are now almost 18 and 13, they are, in my opinion, more likely than otherwise to be well able to stand up for themselves.  The suspended sentence given to the mother by me on

    
    

    8 October 2010 has well and truly now expired and she is not at risk of going to jail in the event of contravention, contrary to the assertions in her affidavit. 

30. In all the circumstances, it is manifestly clear that this litigation should not be allowed to recommence and I therefore decline to grant leave to the applicant to file any of the material she seeks to file. 

31. There will be an order accordingly. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  4 June 2013