Hefferon and Maltby
[2010] FamCA 555
•21 June 2010
FAMILY COURT OF AUSTRALIA
| HEFFERON & MALTBY | [2010] FamCA 555 |
| FAMILY LAW – PROCEDURE – Application for permission to commence new proceedings concerning child – Application dismissed |
| Family Law Act 1975 (Cth) s 118(2) Family Law Rules 2004 (Cth) Rule 11.05 |
| Attorney- General (Cth); Ex parte Skyring (1996) 135 ALR 29 McNamara & Rose (2007) FamCA 529 Zabaneh & Zabaneh (1986) FLC 91-766 |
| APPLICANT: | Ms Hefferon |
| RESPONDENT: | Mr Maltby |
| FILE NUMBER: | ROC | 625 | of | 2009 |
| DATE DELIVERED: | 21 June 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O’Reilly J |
| HEARING DATE: | 18 June 2010 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Nikou SC |
| SOLICITOR FOR THE RESPONDENT: | Ms Rogerson |
Orders
IT IS ORDERED
The mother’s application filed 26 May 2009 seeking that order 9 made by Mushin J on 4 May 2005 be discharged that the mother be granted permission to bring new proceedings concerning the child A born … March 1995 and other orders is dismissed.
If the father should seek to maintain his claim for costs contained in paragraph 2 of his response filed 11 February 2010:
a.the father file written submissions in relation to costs by email to the Associate and serve them on the mother by posting to PO Box … by 4 pm on Monday 5 July 2010;
b.the mother file written submissions in response by email to the Associate and serve them on the father by posting to his solicitors by 4 pm on Monday 19 July 2010;
c.the parties each state in the written submissions whether listing is required or whether they agree to the father’s application being dealt with on the basis of the written submissions.
IT IS NOTED that publication of this judgment under the pseudonym Hefferon & Maltby is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: ROC 625/ 2009
| MS HEFFERON |
Applicant
And
| MR MALTBY |
Respondent
REASONS FOR JUDGMENT
The mother Ms Hefferon applies under s 118(2) of the Family Law Act1975 (Cth) that an order made under section 118(1) by Mushin J on 4 May 2005 be discharged and that she have permission to start a new case concerning A born in March 1995 now 15 years.
Usually such applications, in the first instance, are made and heard ex parte. The mother’s application was expressed to be so made, however, the child’s father Mr Maltby either was served with the mother’s application or otherwise became aware of it and appeared.
The mother’s application was filed on 27 October 2009 in the Federal Magistrates Court. It was transferred to this Court only on 23 March 2010.
If granted permission, the final orders the mother seeks are that certain orders, 4, 5 and 9, of the orders made on 4 May 2005 be discharged and the child spend time with and communicate with the mother as is ordered by the Court. The interim orders the mother seeks are that the child be represented and that a family report be prepared.
Initially, the mother sought an adjournment of her application on the basis that her Legal Aid had been “refused yesterday” and that she had been informed of that “yesterday” and that she had been unable to think properly about the submissions she would need to make. The mother said that she would like the opportunity to “obtain new legal services” or “prepare documents to appear myself”. After discussion, however, the mother said that it would be unlikely that she would be granted any new Legal Aid and that in those circumstances would not continue to seek an adjournment.
The mother’s application and affidavit were prepared for her by Madden Solicitors Rockhampton. They are detailed and comprehensive. The mother has had the assistance of the Duty Lawyer before coming into Court, which the mother told me. In the light of all of these matters, and her statement that in all of the circumstances she no longer sought an adjournment, I proceeded with her application. If the mother had not had already the benefit of considerable assistance by Madden Solicitors and the Duty Lawyer I would have adjourned her application with a recommendation that she be granted Legal Aid. However, after hearing the mother as to these matters and satisfying myself that she understood the nature of the application and the relevant legal principles, which I outlined to her, I concluded that the mother was able to represent herself and that she was willing to do so.
On 4 May 2005 Mushin J ordered that the child live with the father and that he have sole parental responsibility for him.
Orders 4, 5 and 9 provide:
4.THAT notwithstanding any other orders of the contrary the mother not have contact any face-to-face contact with the said child.
5. THAT the mother have contact with the said child as follows:
a. by forwarding, on not more than 4 occasions each year, presents and correspondence to the said child by way of the father, the father being and is hereby empowered at his sole discretion to decline to give any such communication to the said child if he deems such to be inappropriate; and
b.at such other times and such other means as the father in his sole discretion may determine.
…
9.THAT pursuant to the Section of 118 of the Family Law Act 1975 the mother be and is hereby restrained from bringing any proceeding within the jurisdiction of this Court or the Family Law jurisdiction of the Federal Magistrates Court or other Court of competent jurisdiction save with the leave of a Judge of this Court first had and obtained, such leave to be sought in the first instance on an ex parte basis.
It is relevant to what follows to mention also order 6 of those orders:
6.THAT the mother be and is hereby restrained by herself, her servants and agents as follows:
a.criticising or publishing any criticism of the father or the said child in any manner whatsoever;
b.publishing to any person any medical information relating to the child;
c. approaching any past or present carer or teacher of the child;
d.attending or contacting the father’s place of work, any residence of the child or school attended by the child by telephone or otherwise; and
e.approaching within 500 meters of any school attended by the child save for passing thereby for any bona fide purpose.
On 16 August 2005 Carter J in the course of contravention proceedings brought by the father against the mother varied order 4 so as to read:
4.That notwithstanding any other orders to the contrary, the mother not have any face-to-face contact with the said child.
Carter J added to order 6 a further subparagraph (f):
f.from communicating with the child in any way whatsoever, including but not limited to, communication by action, deed or gesture; verbal communication, and written communication in any form or by any medium, save as is provided in par 5 hereof.
The mother’s application under section 118(2) falls to be considered under Rule 11.05 of the Family Law Rules 2004:
FAMILY LAW RULES 2004 - RULE 11.05
Application for permission to start a case
(1) This rule applies if:
(a)the court has made an order under subsection 118 (1) of the Act or paragraph 11.04 (1) (b); and
(b)the person against whom the order was made applies for permission to start or continue a case.
(2)The application must be in an Application in a Case and must be made without notice to any other party.
Note An applicant must file an affidavit stating the facts relied on to establish the need for the orders sought (see rule 5.02).
(3) On the first court date for the application:
(a) the court may dismiss the application; or
(b) the court may:
(i) order the person to:
(A) serve the application and affidavit; and
(B)file and serve any further affidavits in support of the application; and
(ii) list the application for hearing.
(4)The court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.
Apart from the mandatory provision in Rule 11.05(4), it is necessary to have regard to the principles governing the application as set out in Zabaneh & Zabaneh (1986) FLC 91-766 at 75,867-7, including:
…The purpose of the section is to protect the respondent to the application from being brought to the Court in the first instance. However, if the Court is satisfied on the material before it that there is an issue - that there is a possible ground - on which leave should be given, then it seems to me totally appropriate that the other party should be given an opportunity to put forward reasons against the granting of leave before that order is finally confirmed.
…
In a case such as this where there has been so much litigation over the years, so much hostility and bitterness between the parties, and so many difficulties experienced between them, I think it is important to say something about the principles which might guide the Court in dealing with applications for leave to institute proceedings, and indeed, for applications to reinstate access.
The reason why a party is restrained from instituting proceedings in a case like this, is to prevent multifarious overlapping applications between the parties, which amount in essence to a harassment of the other party, and an abuse of the process of the Court, and which involve enormous expense for both the parties and the legal aid office. But, when one comes to consider whether leave should be granted to institute proceedings, particularly in family law matters, one has at some point to consider, after a certain lapse of time, whether it is reasonable to reconsider the issues.
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.
The difficulty is that the husband in a case such as this may have no direct evidence to put before the Court relating to the children and their needs, simply because he has had no contact with them over the years. So that if he is to come forward with a chance of asking for, and being granted, leave to institute proceedings he really has few options but to rely on his own state of mind, and to put forward some evidence of change in his own attitudes towards the matter, his attitudes towards his family; to his children and his wife. He might also put forward some changes in his behaviour pattern in regard to proceedings before the Court.
It is necessary also to be mindful of the principles referred to by Kirby J in Re Attorney- General (Cth); Ex parte Skyring (1996) 135 ALR 29 at 31 – 32.
In McNamara & Rose [2007] FamCA 529 the Full Court at [22] approved that in these applications Rule 11.05(4) has the effect that the onus to satisfy the Court that there is a reasonable likelihood of success if permission is granted falls on the applicant; that the policy considerations are as set out in Zabaneh; and that the Court must always consider that “it is a serious matter to deprive a person of access to the courts of law” as observed in Skyring, per Kirby J.
Mother’s case
The mother, who appeared for herself but who, as I have said, had the assistance of the Duty Lawyer before coming into Court, relied upon three matters for the purpose of Rule 11.05(4) to show that the case has a reasonable likelihood of success:
1)The circumstance that she has changed and developed better insight and parenting skills, as demonstrated in her affidavit filed 26 October 2009 supplemented by brief oral evidence and her written submissions prepared by the Duty Lawyer (ex 2) supplemented by brief oral submissions.
2)A report by Dr J, psychiatrist, dated 16 September 2009.
3)Her belief, detailed in a handwritten letter she sent to the child’s school (undated) but received by the school on 24 May 2001 (ex 1) that the child would benefit by psychological assessment and by being able to spend time with her and her two young daughters N and E who are his step sisters.
I will deal with each of these in turn.
The mother’s affidavit and submissions concerning the matters in it
Much of the mother’s material and submissions deal with matters before the time of the trial before Mushin J, which occurred over 8 days in April and May 2005.
As to matters since then, however, the mother referred to the circumstances that she now holds a Blue Card in relation to children, she is parenting her two young daughters from the relationship with her current partner N 9 years and E 6 years and is a competent and caring mother. The Department of Communities (Child Services) has never had involvement concerning N or E. She holds employment. She acknowledges that in the past she has “made mistakes”, but has attended courses and attended upon a psychologist since the 2005 proceedings and is able to be child focused.
I will not refer in detail to the other matters in the mother’s affidavit, and the submissions concerning the matters in it, but have taken them all into account including the mother’s submission that in the 2005 proceedings Mushin J according to the mother did not give appropriate weight to the child’s wishes and that in the 5 years which has passed since then, when A was only 10 years, his wishes should be the subject of interview by a family report writer.
Dr J’s new report
Dr J assessed the mother on 9 September 2009. Upon mental state examination he concluded that there is no clinical evidence of delusions, hallucinations or thought disorder; that her affect was within normal range and intensity and was congruent; her mood was euthymic and her cognition, judgment, and insight were intact. Dr J concluded that there is no evidence of any psychiatric disorder or diagnosable personality disorder. Otherwise, I would refer to the observations in his report without setting them out.
The mother’s beliefs as to the child’s needs
These are detailed in the mother’s handwritten letter to the child’s school, ex 1, to which I have made sufficient reference. In addition, as I have said, the mother believes that the child needs and wants to spend time with her and his two young step-sisters.
Submissions by the father
Ms Nikou SC, who appeared also for the father in the 2005 proceedings, submitted that “nothing is new”.
When I challenged Ms Nikou that, at least, Dr J’s report is new, it being dated 9 September 2009, and that the opinion in it is as I have summarised already, Ms Nikou maintained the submission that “nothing is new” in that whilst Dr J’s report is new, nothing in it is new, because in the 2005 proceedings, similarly, there was evidence that the mother did not have any diagnosable psychiatric condition or personality disorder. Ms Nikou pointed to the circumstance that Mushin J was so perplexed by the case that as a precaution he directed during the trial that the mother again be assessed and that Mushin J was satisfied “to the highest possible degree” that the mother was not suffering from any psychological or psychiatric illness (reasons, [26]).
Yet, Ms Nikou submitted, Mushin J concluded that the risk of psychological harm to the child if he should have contact with the mother was so dangerous that he could not even contemplate that the child spend supervised time with the mother (reasons, [40]):
I have spent nearly eight days trying to find a way of enabling the mother to see her 10-year-old son for two hours once a month on a supervised basis and I have to say that I have failed...
At [38] Mushin J said:
...On my observation, if that is the generality, then I agree that the mother has a distorted sense of that reality. I cannot take it further.
At [41] Mushin J picked this up saying:
In those circumstances, I am not satisfied that there is anything I can do to protect [A] against the dangers of psychological and emotional onslaught which the mother’s behaviour, delusional and obsessive, poses to [A] with even the slightest amount of contact. This is not something which can be protected by supervision even of the closest type.
Mushin J concluded (Ms S being the family report writer) at [43]:
Ms [S’s] evidence persuades me to the highest degree of probability that the relationship between the mother and [A] as expressed and demonstrated by the mother is not only completely unhealthy for [A], but is a danger to his psychological and emotional wellbeing. It should be clear from that that I have decided to reject the mother’s application and I do so.
Ms Nikou referred, for the sake of completeness, to the following paragraphs of his Honour’s reasons, which are mandatory reading: [25], [26], [28], [29], [30]-[33], [36]-[39], [40], and [41]-[43].
Ms Nikou referred further to Carter J’s reasons and findings at [38], [39], [41], [42], [45], [55], [56], [57], [61], and [65], to which I would also refer.
Ms Nikou submitted that the thrust of the mother’s case is that “I have changed”, but that if the surface of that be scratched, that is not true and nothing has changed, perhaps best evidenced by the content of the mother’s letter to the child’s school, ex 1, showing that whilst the mother may not have any diagnosable psychiatric or psychological disorder, there is “something” in Mushin J’s conclusion in his reasons at [38] that the mother has “a distorted sense of reality”, being “something” which he could not take further, but which is evidenced again by the mother’s recent letter to the child’s school, which requires a full reading, not only as to the perplexity of the case, but as demonstrating that “nothing has changed” in relation to the mother’s insight concerning the child, which is the thrust of the mother’s case.
Ms Nikou, in particular, pointed to the circumstance that the mother’s letter, ex 1, does not help the mother’s case as it was written since the current application was filed on 26 October 2009 and indeed sent to the child’s school only last month received by the school on 24 May 2010.
Conclusion
I have considered all of the evidence and submissions very carefully.
At first blush, I was attracted to Dr J’s report as evidence which, standing alone, may have caused me to be persuaded that the mother had discharged the onus on her of showing a reasonable likelihood of success in a new case by her for an order that the child spend time with and communicate with her.
However, once Dr J’s report is considered in the light of the history of the case and in particular Ms Nikou’s submission that in reality “nothing is new” in the content of his report, rather than the mere circumstance of its being a new report, I am persuaded that neither it, nor any of the other evidence or submissions presented by the mother has effect that in her proposed new case there is any reasonable likelihood of success.
I am constrained, therefore, to dismiss the mother’s application.
At the conclusion of the hearing on Friday Ms Nikou referred to the father’s response filed 11 February 2010 seeking not only the dismissal of the mother’s application but that she pay the father’s costs. I said that if I were minded to dismiss the mother’s application I would make directions as to the filing of written submissions in relation to the costs application.
I will, therefore, order that if the father’s costs application is to be pursued he file and serve written submissions within 14 days, the mother file and serve written submissions within 14 days after that, and that both parties state in the written submissions whether they agree that the matter of the father’s costs application be dealt with on the basis of the written submissions or whether either the father or the mother seeks a listing for the making of oral submissions as well.
I would make the following observations, however, as to the father’s costs application, emphasising that the observations should not be taken as any prejudgment of the matter.
Although costs are compensatory, rather than punitive, the mother has the particular difficulties outlined by Mushin J in his reasons for judgment which difficulties are well known to the father.
Although the mother’s application has been wholly unsuccessful, Mushin J observed that the mother has a “distorted sense” of reality. If that be true, then her conduct in bringing the application for the new proceedings might properly be viewed in that context, which is no fault of the mother and indeed perhaps a circumstance requiring compassion.
I appreciate that the father might persist with his costs application to deter the mother from in the future bringing any further s118(2) application. However, according to the Rules of Court, such would be ex parte in the first instance as indeed it appears the mother initially intended on this occasion.
Further, presently there is no evidence as to the mother’s ability to pay any costs order. Such evidence is requisite in relation to the matters to be considered under s117(2A).
I appreciate that in the Federal Magistrates Court there is already a costs order against the mother by order made on 23 March 2010 (amended 6 May 2010). I am not influenced by that, nor should I be.
If the father should persist in his application for costs I will, of course, determine it on the merits, having regard to all of the matters in ss117(1), 117(2) and 117(2A).
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly
Associate:
Date: 2 July 2010
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