Jackman and Beauregard

[2006] FamCA 1393

FAMILY COURT OF AUSTRALIA

JACKMAN & BEAUREGARD [2006] FamCA 1393

APPEAL – Against refusal of application for leave to commence proceedings for parenting orders – The applicant, a the former de facto partner of the father of two children who live was restrained from having any contact with them and from bringing any parenting application without leave – Applicant sought that the children live with her and have limited contact with their mother – Trial judge considered the application had no reasonable likelihood of success – nothing in the material provided to the Full Court demonstrated any appealable error – Appeal dismissed.

Family Law Act 1975 (Cth)

APPLICANT/APPELLANT: MS JACKMAN

RESPONDENT FATHER: MR BEAUREGARD

SECOND RESPONDENT: MRS BEAUREGARD

FILE NUMBER: MLF 6873 of 2002

APPEAL NUMBER: NA 47 of 2006

DATE DELIVERED: 28 NOVEMBER 2006

PLACE DELIVERED: Brisbane

JUDGMENT OF: KAY, WARNICK & COLEMAN JJ

HEARING DATE: 28 NOVEMBER 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 22 MAY 2006

LOWER COURT MNC: [2006] FamCA 441

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

Orders

1. The appeal filed 20 June 2006 is dismissed.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 47  of 2006
File Number: MLF 6873  of 2002

MS JACKMAN

Applicant/Appellant

And

MR BEAUREGARD

Respondent Father

And

MRS BEAUREGARD

Second Respondent

REASONS FOR JUDGMENT

Kay J

1. This is an appeal brought by the applicant, Ms Jackman, against an order made by Carmody J on 22 May 2006 dismissing an application that Ms Jackman made for leave to commence proceedings for certain parenting orders.

2. The order of Carmody J makes reference to the dismissal of an application of 31 March 2006, although the application in the Appeal Book appears to be filed on 11 November 2005.

3. I propose to give reasons in accordance with the provisions of s 94(2A) of the Family Law Act 1975 (Cth) in short form on the basis that the appeal does not raise any question of general principle.

Background

1. The proceedings concern two children; T, born in December 1993, and S, born in August 1996.  Their parents are Mrs Beauregard and Mr Beauregard.  The parents have been separated since November 2001. 

2. There has been some litigation between the parents concerning residence and access orders relating to the children.  The litigation traversed a path for two or three years in this Court, and culminated in orders that were made by Rose J on 13 October 2004, that the children reside with their mother, and that she be solely responsible for their day-to-day and long-term care, welfare, and development, and that the father have fortnightly supervised contact with the children at a contact service. There were other orders relating to the mechanics of contact. 

3. One of the orders of Rose J was that the father was to use his best endeavours to ensure that neither Ms Jackman - that is the appellant in these proceedings - nor any other person engage in any derogatory behaviour by way of comments or otherwise in relation to the mother in the presence or hearing of the two children or either of them.

4. In the course of the interlocutory proceedings that led to the final orders being made there were proceedings before Carter J on 3 June 2004 at which her Honour dismissed applications filed by the father and by Ms Jackman, and further ordered

   That Ms [Jackman] be restrained until further order from filing any application in relation to the children, [T] … and/or [S] …, save without leave of a Judge of the Family Court of Australia.

   That order is still extant. It was never the subject of any appeal.  In light of the order of Carter J, Ms Jackman brought an application for leave to commence proceedings.

5. Rule 11.05 of the Family Law Rules provides that where an order has been made restraining the commencement of proceedings:

   (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.

6. It should be noted at this time that Ms Jackman had lived with the father for a period for up to two years between 2002 and 2003, but since that time has remained as “a friend” of the father.  It is not the father who is instigating these proceedings in any way but it is Ms Jackman.

7. The proceedings which she sought leave to commence sought orders that the children reside with her and that she be solely responsible for their long-term care, welfare, and development.  She then proposed a series of orders relating to the contact that would be appropriate for the father to have with the children in some significant detail, but that contact the mother would be allowed to have with the children ought be limited to phone contact weekly 

   Mother, Ms [Beauregard], contact by phone weekly 7.30 pm Sunday, phone contact 8 am Mothers' Day, Christmas Day, Easter Sunday, and children's birthdays.  Mother mail weekly, and non-parent to make sure children receive gifts and mail from mother and mother's family.

8. She then sought orders that would restrain the mother and members of her extended family from coming anywhere near the father or the applicant or the children.  She sought orders relating to payment of child support.  She sought a recovery order; that is that the children be physically taken and handed to her.  She sought orders that provided for the mechanics of what she headed “Transport and Relocation”, requiring the father to do acts that would have the children collected from an airport in Victoria and flown to Queensland, and other orders relating to the way in which the orders would be put into effect.

9. The proposed application also sought orders such as

   Grandmother [JS] is to box up all the children's belongings, freight to Queensland by train

   and then suggested what those belongings should be. 

Conclusion

1. As already indicated, the trial judge is obliged, by reason of the operation of the Family Law Rules, not to grant permission to start a case unless the case had a reasonable likelihood of success.  The trial judge, in his reasons for judgment, indicated that having read the material that Ms Jackman had provided the bases upon which she was seeking to proceed that:

   They all suggested orders were unjust based on false or misleading evidence and the concealment of important risk-related information from the Department of Child Safety.  It also alleges that the mother's counsel and child representative perverted the course of justice by deliberately moving the final hearing from [Victoria] to the Canberra Registry without notifying the father.

2. His Honour went on to say:

   The period allowing for appealing against the final orders has come and gone.  Section 118 is intended to protect parties to family litigation from the needless expense and effort of defending the various applications.  They are made reluctantly but for good reason.  I see nothing in the material provided by Ms [Jackman] to date that would suggest that giving her leave to file her application would be a proper use of Court resources or warrant the intrusion to the daily life of the resident mother, or indeed more importantly, the children themselves.

3. Ms Jackman has provided to this Court far more material than she provided to Carmody J, but for the purposes of allowing her to argue her appeal we have allowed her to make reference to that material and we have perused it.  There is nothing in the material nor in the additional material that would demonstrate that Carmody J was in any way in error in dismissing the application.  There is nothing indicated in the material that would indicate it has the slightest chance of success, let alone a reasonable likelihood of success.

4. In my view, it is appropriate that the appeal be dismissed.

Warnick J: 

1. I agree that the appeal should be dismissed for the reasons provided by the Presiding Judge.  I have nothing to add.

Coleman J: 

1. I also agree, and have nothing to add.

Kay J: 

1. Thank you.  The order of the Court is that the appeal filed 20 June 2006 is dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate: 

Date:  22 December 2006