Josephs & Lorenzo
[2022] FedCFamC2F 506
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Josephs & Lorenzo [2022] FedCFamC2F 506
File number(s): ADC 4244 of 2018 Judgment of: JUDGE BROWN Date of judgment: 22 April 2022 Catchwords: FAMILY LAW – parenting - child aged thirteen years – application made by father to spend time with child following final order made in November 2020 – at time of final orders child apparently estranged from father – parties agreed to regime of reunification counselling – counselling unsuccessful as child reported to be unwilling to engage with father – whether the rule of Rice & Asplund should be applied – application for summary dismissal – whether there has been a significant change in material circumstances since final order – best interests – consideration of the benefits to be derived by avoidance of further litigation balanced against what such litigation will usefully achieve – matters to be considered – no reasonable prospects of success – application dismissed Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 45A, 60B(2), 60CA, 60CC(2)-(3), 69ZN(3), 69ZQ,
Family Law Amendment (Family Violence & Other Measures) Act 2018 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Court Act 1976 (Cth) s 31A
Cases cited: Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256.
Bennett & Bennett (1991) FLC 92-191
Josephs & Lorenzo [2019] FCCA 929
CDJ v VAJ (1998) FLC 92-828
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
H v W (1995) 126 Fam LR 788, 797
In the Marriage of McEnearney (1980) FLC 90-866
King & Finneran (2001) FLC 93-079
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Marsden v Winch (2009) 42 Fam LR 1
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409
Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
R & R: Children’s Wishes (2000) 25 Fam LR 712
Rice v Asplund (1979) FLC 90-725
Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188
Spencer v Commonwealth of Australia (2010) 241 CLR 118
SPS & PLS [2008] FamCAFC 16
Stativa & Stativa [2015] FamCAFC 170
Walter & Walter [2016] FamCAFC 56
Webster v Lampard (1993) 177 CLR 598
Division: Division 2 Family Law Number of paragraphs: 127 Date of hearing: 31 March 2022 Place: Adelaide Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: Lachlan McAuliffe Barrister & Solicitor Counsel for the Respondent: Ms Miller Solicitor for the Respondent: NJ Ireland Barrister & Solicitor ORDERS
ADC 4244 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JOSEPHS
Applicant
AND: MS LORENZO
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
22 APRIL 2022
THE COURT ORDERS THAT:
1.The Application filed by the applicant on 31 August 2021 is hereby dismissed.
2.The Respondent be at liberty to file and serve an application for costs within 28 days of these orders with the Applicant given leave to file any response within a further 28 days of that and with the matter to be listed on a date and time to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Josephs & Lorenzo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The reasons for judgment are directed towards determining whether an application brought by the father should be summarily dismissed pursuant to the provisions of section 45A of the Family Law Act 1975 (Cth),[1] on the basis that he has no reasonable prospects of pursuing his application successfully.
[1] Hereinafter referred to as “The Act”.
In the alternative, it is submitted by the mother, that it is demonstrably the case that the continuation of the proceedings cannot be in the best interests of the child concerned, as it cannot be demonstrated that the case will serve any useful purpose, other than to consume the emotional and financial resources of the parties and expose the child concerned to unwarranted psychological distress.
This is because the child concerned has consistently stated that she does not wish to engage with her father. A position which she has maintained for a number of years and stated to a number of independent experts, most recently a person directed to explore the prospect of father and child undertaking reunification therapy.
In the context of the child’s apparent estrangement from her father, there have been protracted proceedings about her care in the past. It the mother’s position that these proceedings have definitively examined all relevant issues and nothing has changed since the case was last before the court in November 2020, when a final consent order was made, which did not provide any direct mechanism for the child to spend time with her father.
In these circumstances, it is submitted that the court should exercise the discretion conferred upon it to dismiss the proceeding according to what lawyers refer to as the rule arising from the case of Rice & Asplund,[2] which is a reflection of the paramountcy principle, namely that it is the best interests of children, which have ascendancy, not the rights and aspirations of their parents.
[2] Rice v Asplund (1979) FLC 90-725
The father asserts otherwise. Necessarily, he asserts that further litigation can achieve some useful outcome, which, by necessary implication, would involve there being some form of rapprochement achieved between him and the child, presumably by court order.
In this context, on both an interim and a final basis, he seeks that the court should make orders directing the mother, in effect, to deliver the child, in some way to him, so that the two can interact together, notwithstanding there has been no such interaction for a number of years and the child does not apparently want to engage in such a process and the father himself cannot suggest any specific mechanism as to how this outcome is to be achieved.
Underpinning his case is the assertion that the mother has played an active role in estranging the child, from him, over a number of years and the court is, in effect, duty bound to investigate this issue in its promotion of the long term best interests of the child concerned.
BACKGROUND
The parties to these proceedings are Mr Josephs (“the father”) and Ms Lorenzo (“the mother”). They are the parents of X born in 2008. Accordingly, X is currently aged 13 years and 5 months.
The parties began their relationship in 2007 and married in 2010. They finally separated on 14 September 2012, after which date the father spent regular periods of time with X.
When the parties separated, X was a pre-schooler. All concerned live in City C, where the mother is an educator and the father is a public servant. The mother alleges that the parties’ marriage was characterised by coercive and controlling behaviour on Mr Josephs’ part, including towards X. The father denies this and asserts that mother has consciously alienated X from him.
The parties have been in dispute, with one another, in respect of arrangements for X’s parenting, particularly what time, if any, she should spend with her father, since October 2018, when Mr Josephs first commenced proceedings in this court, after contact arrangements between him and X broke down.
Since that time, there has been a Child Inclusive Conference (6 February 2019); a Family Report (23 September 2019); and X has been independently represented (from July 2019 until November 2020). The case has also been listed for final hearing on 12 November 2020.
Each of these interventions was directed towards a common purpose, namely enquiring of X why she did not want to spend any time with her father and, if appropriate, considering what mechanisms might be open to facilitate time between the two and repairing the relationship between them.
It is common ground, between the parties, that X has not spent any time with her father since late 2018. Around this time, the mother was diagnosed with cancer, which required extensive surgery and radiotherapy. X, of course, was aware of her mother’s life-threatening illness and in this context had begun to resist spending time with her father.
It was also asserted by the mother that in mid-2018, the father, in the face of X’s refusal to spend time with him had arrived at her school and tried to physically compel her to go with him, which the child had successfully resisted. Accordingly, it was clear that, from the time of its instigation, the case was emotionally fraught and difficult.
When the case came into court, for the first time, on 27 November 2018, it was ordered that X spend time, with her father, at the City B Children’s Contact Centre but prior to that professional intervention she spend time, with her father, at a play cafe, in City B, subject to the supervision of her older half-sibling, Mr E.
Against this background, the case was adjourned to 15 February 2019 and, in the meantime, it was ordered that the parties and X attend a Child-Inclusive Family Dispute Resolution conference, which was scheduled for 6 February 2019. The aim of this intervention being an attempt, by the court, to gauge X’s views in respect of spending time with her father.
When the case returned to court, in mid-February 2019, it became apparent that neither the involvement of Mr E, nor of the City B Children’s Contact Centre had been successful in overcoming X’s apparent resistance to spending time with her father.
In particular, Mr E deposed that he had attended at the mother’s home, on a number of occasions, from December 2018 onwards but had been unable to persuade X to leave with him to spend time with her father. In an affidavit filed on 14 February 2019, Mr E deposed as follows:
I feel very worried that these visits will damage my relationship with X because she will see me as trying to force her to go.[3]
[3] See affidavit of Mr E filed 14 February 2019 at [12].
In an affidavit, which she filed in mid-February 2019, the mother deposed that she had observed X to become ill at the prospect of spending time with her father. In these circumstances, neither she nor the workers at the City B Children’s Contact Centre, had been able to persuade the child to engage in the professionally supervised contact with the father, which had been scheduled to begin on 2 February 2019.
On 15 February 2019, I was called upon to adjudicate competing applications, in respect of ongoing parenting arrangements for X on an interim basis. At this stage, it was the father’s position that an order should be made that X spend time with him each Saturday and Sunday for a number of hours. He opposed any professional or lay supervision of his time with the child.
On the other hand, it was the mother’s position that it would be contrary to X’s psychological wellbeing to compel her to spend time, with her father, against her wishes and in circumstances where she was exhibiting significant emotional distress.
In the resulting judgment,[4] I summarised the parties’ respective positions as follows:
It is the father’s position that he has formed a relationship recently with another person and that it is as a consequence of that relationship that, in effect, the mother has taken to using X as a tool to punish him to satisfy her (the mother’s) own emotional needs because she cannot cope with the fact that he has moved on in his life.
On the other hand, it is the mother’s position that X has of her own volition, resulting from her own experience of him, decided that she does not want to spend time with her father. By necessary implication, Ms Lorenzo considers that it would be psychologically detrimental for X to be compelled to interact, with her father, against her wishes.
Today, Mr Roberts of counsel appears for the father. It is his position that the court needs to adopt a robust attitude to this situation, which in his submission can be easily put right if there is a direction that the child is to spend time with her father, and any problems will be soon resolved by the two interacting together.
[4] See Josephs & Lorenzo [2019] FCCA 929 at [14]-[16].
At this early interim stage, the professional input from the relevant court councillor, Ms H, who had interviewed X in the context of the Child Inclusive Conference, was highly influential. Ms H reported as follows:
This is a complex matter, but it seems evident that X is experiencing difficulty emotionally as a result of her family situation. Whilst it is recognised that Mr Josephs believes that X has been negatively influenced by her mother, the information that she provided to the writer was very detailed, and it seems unlikely that she could have created it all from imagination or solely from being coached. In addition, it is also recognised that the family has recently undergone trauma in relation to Ms Lorenzo’s cancer diagnosis and required treatment. As such, it is considered likely that this has also had an impact upon X, including uncertainty and concern regarding her mother’s prognosis, even though Ms Lorenzo has progressed well and is currently in remission.[5]
[5] Josephs & Lorenzo [2019] FCCA 929 at [39].
Essentially, Ms H described X as a distressed child, who was highly anxious about spending time with her father. In addition, X reported to Ms H that she felt scared, frustrated, angry, embarrassed, sick or scared around her father. She described Mr Josephs as being angry. When Ms H asked X what she wanted her to report to the court, X said she did not want to see Mr Josephs because she felt scared of him.
In this context, under the heading Future Directions Ms H wrote as follows:
Concern is raised given X’s anxious presentation during the conference and the information provided in her booklet that should time-spending be forced upon her at present that it may be counterproductive and result in further decline of the parent-child relationship.[6]
[6] See Child Inclusive Conference Memorandum dated 12 February 2019.
I declined to make the orders sought by the father. It was at this stage, that the order was made for X to be independently represented in the proceedings. Informing my decision was my view that it was then in X’s best interest for her to be relieved from what appeared to be a significant level of emotional pressure she felt at the prospect of being compelled to engage with her father.
Independently, of the court process, Ms Lorenzo arranged for X engage in a process of therapeutic counselling through J Contact Centre in City B. In July 2019, the Independent Children’s Lawyer[7], Christine McCappin, provided a letter to the court detailing J Contact Centre’s involvement with X. The relevant letter read as follows:
This is to confirm that X was referred to J Contact Centre on 08/06/2018 from City C Health Services with concerns for her emotional wellbeing. X presented with feelings of insecurity, nervousness and anxiousness and this appeared to be due to [the] father’s custody. X’s counselling finished with J Contact Centre on 28/02/2019.
Ms K was her counsellor from the Family and Relationship Counselling Program. Ms K’s case notes and wellbeing activities with X portray feelings of discomfort, nervousness, anxiousness and, at times, fear when she is in her father’s and his mother’s care.
There is no indication from case notes or activities done with X from Ms K, while she was working with her that indicates that her mother has any influence over these behaviours and/or feelings.[8]
[7] Hereinafter referred to as “the ICL”.
[8] See Annexure 2 of affidavit of Ms McCappin’s affidavit filed 16 July 2019.
Given the impasse between the parties, it was appropriate that a more extensive professional investigation of the family be undertaken, preparatory to a final hearing occurring, which, if it took place, would be directed towards a forensic examination of the respective motivations of the parties and their emotional consequences for X herself.
The report was undertaken by Ms H and was released to the parties in late September 2019. In her report, Ms H summarised the father’s case as being based on his view that the mother had negatively influenced X against him.
Ms H described Ms Lorenzo as genuine and non-malicious in her wish that X resume spending time with her father. However, it is her position that she was unable to force the child to attend upon her father.
In the report, Ms Lorenzo explored some of the reasons why she perceived X was so extraordinarily reluctant to interact with her father. These centred on what Ms Lorenzo described as a very traumatic stay X had with her father, whilst she (the mother) underwent radiotherapy in Adelaide and during which period Mr Josephs allegedly did not allow her to have any interaction with her mother.
Underpinning this aspect of the mother’s case is her position that, in the past, Mr Josephs has attempted to force the issue regarding X spending time with him and this has also had an adverse impact on X, whom Ms Lorenzo described as a reserved child, who had been from time to time, selectively mute.
In her report, Ms H summarised Ms Lorenzo’s attitude to the case in the following terms:
Ms Lorenzo believed that regular time-spending should occur, but maintained that she could not force X to attend. She previously encouraged her to attend with her adult brother, or to use a code word should she wish to come home, or to take Mr L’s telephone with her if she needed it to feel safe. She also suggested reintroducing supervised visits through a Children's Contact Centre, but Mr Josephs refused. She also said that X indicated that she would run away if she had to attend, and has previously hidden in the car. Ms Lorenzo wondered if re-establishing X's relationship with her paternal grandmother in the first instance could assist, prior to reintroducing Mr Josephs, given that X had previously shared a positive relationship with her.[9]
[9] See Family Report of Ms H dated 23 September 2019 at [45].
Ms Lorenzo also indicated to Ms H that she had invited Mr Josephs to take part in X’s counselling but he had refused, indicating his view that X was being over-therapized. Essentially, Ms Lorenzo described Mr Josephs as a parent who was emotionally smothering of X, whilst at the same time unable to listen to her concerns.
In interview with Ms H, X was described as being tearful and that it was good that she had not spent time with her father because he never listens and speaks in a derogatory fashion about her mother. X declined to be observed with her father. The observed interaction between X and Ms Lorenzo was appropriate and warm.
In all these circumstances, Ms H did not recommend that there be any time spending orders made regarding X and her father. Essentially, Ms H believed that it would be counter-productive for the child to be compelled to spend time with her father, given the vehemence of her views, which from Ms Hs’ point of view, was based on X’s own experience of her father, rather than any influence emanating from her mother.
In all these circumstances, Ms H recognised the dilemma, which the case represented, particularly given her acceptance that Mr Josephs deeply loved X. In this context, she wrote as follows:
The importance of children being able to maintain relationships with both parents is acknowledged, and it is hoped that X will be able to reconnect with Mr Josephs in the future. Some concern is raised, however, that should she be forced to attend time-spending at present, that this may potentially lead her to continue to resist, and to further damage, the father-daughter relationship. It is hoped that X's views may change over time, in conjunction with Mr Josephs seeking an intervention to assist him to consider age appropriate ways to engage with X, in a positive and child-focussed manner.[10]
[10] See Family Report of Ms H dated 23 September 2019 at [75].
This was the background to the final hearing of the matter, which was scheduled for mid-November 2020. By this stage, Mr Josephs was no longer legally represented. Ms Lorenzo was represented by the same firm of solicitors and counsel, Ms Miller, who had represented her throughout the proceedings up to this stage. The ICL was represented by counsel.
Given the contents of the family report, which although undoubtedly highly distressing to Mr Josephs, was clear in its implications, the parties were able to resolve the case on a final consensual basis on 12 November 2020.
The orders agreed upon were consistent with the evidentiary background to the case and took into account X’s views as expressed to Ms H and which were supported by the ICL. On 12 November 2020, the following final consent orders were made:
(1)That X born in 2008 (‘the child’) do live with the mother.
(2)That the child spend time with the father as follows:
(a) Anytime that is arranged by Ms N (or such other therapist as can be agreed in writing between the parties, should Ms N be unavailable) in the course of reunification therapy.
(b) Any other or further time agreed in writing by the parties.
(c) Subject to X’s wishes.
(3)That the mother forthwith do all such acts and sign all such documents necessary to facilitate X’s attendance at reunification therapy with Ms N (or such other agreed therapist), including her own participation in the said therapy. That the mother bear the costs of her involvement in the said reunification therapy.
(4)That the father participate in the said reunification therapy and bear the costs of his involvement in the said reunification therapy.
(5)That both parties bear the joint cost of X’s involvement in the reunification therapy equally.
THE CURRENT PROCEEDINGS
Mr Josephs commenced the current proceedings on 31 August 2021. In his supporting affidavit, he confirmed that he had not spent any time with X since the final orders were made in November 2020. He confirmed that, as envisaged by the orders of November 2020, there had been some process of reunification counselling, which had involved Ms N but, from his perspective, this counselling had been perfunctory, non-inclusive of him and unsupported and ultimately subverted by Ms Lorenzo.
In essence, it is Mr Josephs’ position that the engagement of reunification therapy between him and X, which provided the only basis on which he agreed to compromise the case has been demonstrated, from his perspective, to be a sham and, on this basis, he asserts that it is manifestly in X’s best interests for the court process to be reengaged, otherwise there is a serious risk that the child will lose her paternal relationship, to her long term emotional detriment.
In these circumstances, in his application of 31 August 2021, he sought to begin to spend time, with X, immediately each alternate Saturday, from 10.00am until 3.00pm, without the necessity for any form of supervision, either lay or professional.
The mother responded to this application on 29 November 2021. She seeks the summary dismissal of the father’s application and that he pay her costs of the application. In her affidavit filed in support of her application, Ms Lorenzo deposes as follows:
I arranged for X to engage with Ms N for reunification therapy in compliance with the court order of 12 November 2020. X had 2 individual sessions with Ms N on 14 December 2020 and 23 December 2020 respectively. I made sure that I left the room when X was talking to Ms N for those sessions.
A joint session to include both X and the father was arranged for 30 December 2020. However, when Ms N spoke to X at the start of the session she refused to speak with the father. She then threw the phone down and left the room. Therefore, Ms N made the decision to end the session.[11]
[11] See mother’s affidavit filed 29 November 2021 at [19]-[20].
In is an essential aspect of the father’s case that Ms N has, in some way, been derelict in her professional responsibilities towards him and X. By necessary implication, he asserts that she should have done more to bring him into some form of engagement with X, so that the two could at least speak with one another. In this sense, he asserts that what has occurred is not congruent with the spirit of the November order.
In these circumstances, Mr Josephs is suspicious of the bona fides of Ms N and the commitment of Ms Lorenzo to the process of reunification therapy between him and X. His counsel has provided the following criticisms of her involvement in the case:
The mother’s failure to properly engage in the reunification therapy process or to encourage the child to do so is contrary to her obligation under the final order…
The decision of Ms N to terminate the session after only a few seconds is inconsistent with the role contemplated by the parties of the reunification therapist when the final order was made…It relevant that subsequent to the attempted therapy sessions Ms N refused to provide the father with a report as to the outcome and reason for termination of the session citing confidentiality grounds, but did provide the mother with a report.
The import being that in some way or other, the mother and Ms N are in cahoots with one another.
In her affidavit in response to the father’s application, Ms Lorenzo has deposed her view that she has done her best to comply with what was envisaged in the orders of November 2020. In this context, she deposes that she arranged for X to have two private individual sessions with Ms N, a fortnight apart in December of 2020. She made sure that she was not present whilst X spoke to Ms N.
Against this background, Ms N arranged for a joint session to occur between X and her father on 30 December 2020 via Zoom. However X declined to engage with her father. Subsequently, at the request of Ms Lorenzo’s solicitor, Ms N provided the following comments, in a letter dated 29 October 2021:
I had two short sessions with X on the own (14/12/20 and 23/12/20) which were willingly organised and facilitated by yourself. The aim of one of these sessions was to attempt to organise a session for X to speak to her father with me present via Zoom.
This session with X, her father and myself was organised for the 30/12/20. The session was brief as X did not wish to engage with Mr Josephs and left the room. It was then decided by me that the session would end as X did not want to continue.
After that attempt X did not wish to continue sessions and reunification therapy was closed. This decision of X was communicated to Mr Josephs by me via email.[12]
[12] See Annexure -2 to the mother’s affidavit filed 29 November 2021
It is the mother’s case that multiple attempts have been made, to which she has been a party, to see if some form of relationship can be re-established between X and her father, since mid-2018, following an ever-deepening estrangement between the two, which obviously has coincided with the child’s growing maturity. All these attempts, culminating with that of Ms N, have been unsuccessful and marked by X’s apparently adamant refusal to engage with her father.
In addition, Ms Lorenzo points to the fact that X is now over thirteen years of age. She has her own mobile telephone. She has her father’s telephone number. The two live in reasonable geographic proximity. Accordingly, if she wishes, it is theoretically open to X to telephone or text message her father any time she wishes, if she becomes interested in developing some rapprochement with him. Otherwise, to compel her to engage with her father or in some way attempt to change her mind via counselling is destined to end in failure. In these circumstances, it is Ms Lorenzo’s position that the continuation of the proceedings can serve no useful purpose.
In these circumstances, Ms Miller, the mother’s counsel, has made the following submission:
The father holds unrealistic expectations that the mother via a legal process can compel the child to feel positively towards him despite the child’s strongly held views of the past 2½ years. The mother contends that an order imposing time spending is unlikely to receive the necessary cooperation of the child, risks causing unnecessary emotional harm to the child and finally, may irreparably sever the child’s relationship with the father.[13]
[13] See mother’s outline of case filed 10 November 2020 at [11]
In my view, underpinning this assertion is the inference that, when the father compromised the proceedings, he was aware that X had expressed a strong wish not to engage with him as much as Mr Josephs would have wanted and he acknowledge her wish as being valid and, as such warranted his respect.
In these circumstances, there was a tacit acknowledgement that the only means by which he could have his relationship with X reinstated was through some form of reunification therapy and in this sense the order made was a final one, as it represented the end of the road.
LEGAL PRINCIPLES APPLICABLE
These are child related proceedings to which the provisions of Division 12A of the Act apply. The Division provides five principles to which the court should have regard in respect of how it conducts cases concerning children in order to minimise any potential deleterious consequences for the children affected by the applicable litigation.
The first principle[14] focuses on the desirability of the court considering the individual needs of the child concerned and the impact the proceedings may have on the child. In this context, the court is authorised to determine how issues are to be determined and when, particularly whether such issues require full investigation or may be disposed of summarily.[15]
[14] See Family Law Act 1975 (Cth) s 69ZN(3).
[15] See Family Law Act 1975 (Cth) s 69ZQ.
In this context, I turn to more specific provisions and legal considerations which can be utilised to authorise the summary dismissal of an application without the need for a full hearing, namely the powers contained in section 45A of the Act and the use of the rule in Rice & Asplund.
Section 45A of the Act provides a mechanism for the court to summarily dismiss an application. In particular, section 45A(2) provides as follows:
The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
Section 45A(3) provides a gloss to this provision. It provides that a proceeding need not be either hopeless or bound to fail to have no reasonable prospects of success.
Section 45A was inserted into the Act pursuant to the provisions of the Family Law Amendment (Family Violence & Other Measures) Act 2018. It is in similar terms to section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth),[16] and section 31A of the Federal Court Act 1976 (Cth).
[16] Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) is the equivalent provision of section 17A of the Federal Circuit Court of Australia Act 1999 (Cth).
In each case, the provision is directed towards the expeditious disposal of unmeritorious proceedings and a concomitant saving of costs to the parties and court resources. However, laudable those aims are, the court must be careful to avoid becoming a slave to expediency.
The Family Law provision was inserted as part of the Australian Government’s response to a number of inquiries into family violence. In particular, the legislature was concerned at the prospect of the proponents of family violence bringing unmeritorious applications to court to perpetuate control over their former spouses in the courtroom setting.
The relevant Explanatory Memorandum indicates as follows:
Various stakeholders have raised concerns about this power being used in situations where victims of family violence who are litigants in person make mistakes which could make their cases appear unmeritorious. New section 45A includes strict parameters around when a court may dismiss an application. The court may only dismiss an application if it is satisfied that the application has no reasonable prospect of success, is vexatious or frivolous or is an abuse of process. Given the high rate of litigants in person in the family law system, the family law courts have significant experience in working with litigants with limited legal backgrounds. The courts are well placed to identify the difference between a litigant in person who is underprepared due to inexperience or trauma, and a litigant whose case should be dismissed because it is an abuse of process or has no reasonable prospect of success.[17]
[17] Explanatory Memorandum, Family Law Amendment (Family Violence and other Measures) Bill 2018, 18 [77].
In Spencer v Commonwealth of Australia,[18] French CJ and Gummow J said of section 31A of the Federal Court Act 1976 (Cth) that it:
[A]uthorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.[19]
[18] Spencer v Commonwealth of Australia (2010) 241 CLR 118.
[19] Spencer v Commonwealth of Australia (2010) 241 CLR 118, 131 [22] (French CJ and Gummow J).
In Webster v Lampard,[20] the High Court said as follows:
The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.[21]
[20] See Webster v Lampard (1993) 177 CLR 598.
[21] See Webster v Lampard (1993) 177 CLR 598, 602 (Mason CJ, Deane and Dawson JJ).
In Lindon v Commonwealth of Australia (No 2),[22] Kirby J provided a list of principles applicable to summary judgment, of which the Full Court of the Family Court, in Stativa & Stativa,[23] provided the full synopsis in point form:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” is doing what is just.[24]
[22] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
[23] Stativa & Stativa [2015] FamCAFC 170 at [8] (Ainslie-Wallace, Murphy & Aldridge JJ).
[24] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
Kirby J said in Lindon v Commonwealth of Australia (No 2):
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.[25]
[25] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
In applying these principles, the court must not overlook what the High Court characterised as the negative admonition contained in section 45A(3) of the Act that a proceeding, or part thereof “may be found to have no reasonable prospects of successful prosecution even if it cannot be said that it is ‘hopeless’ or ‘bound to fail’”.[26]
[26] Spencer v Commonwealth of Australia (2010) 241 CLR 118, 139 [52] (Hayne, Crennan, Kiefel and Bell JJ).
In this context, the High Court said as follows:
[I]t is important to begin by recognising that the combined effect of sub-sections (2) & (3) is that the inquiry required in this case is whether there is a ‘reasonable’ prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceedings would necessarily fail.
In this respect section 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.[27]
[27] See Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [52]-[53].
The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[28] The case “must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … by the court.”[29]
[28] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 415 [12] (Weinberg J).
[29] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409 at [13], quoting Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 91 (Dixon J).
In McKellar v Container Terminal Manager Services Limited, Weinberg J, after summarising the various authorities, relating to summary dismissal, said as follows:
[A] proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.[30]
[30] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 416 [18].
In this context, I also bear in mind what was said by Kirby J in Lindon v The Commonwealth (No 2):
An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination… Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently uncompromising cause into a successful judgment.[31]
[31] See Lindon v The Commonwealth (No 2) (1996) 136 ALR 251, 256 (Kirby J).
In Przbylowski v Australian Human Rights Commission (No 2),[32] Perry J considered that section 31A of the Federal Court Act 1976 (Cth) set a lower threshold than previous tests for summary dismissal, which required cases to be manifestly groundless or hopeless before they warranted dismissal.[33] In my view, similar considerations must apply to section 45A given the analogous provisions contained in section 45A(3).
[32] Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473.
[33] Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] (Perry J).
Whilst bearing in mind the need for caution, Her Honour indicated that the exercise of discretion under section 31A Federal Court Act 1976 (Cth) involved the making of value judgements in the absence of a full and complete factual matrix and argument.
In this context, Perry J endorsed the following comments of Reeves J in Australian Securities and Investment Commission v Cassimatis:[34]
[T]he determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.[35]
[34] Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256.
[35] Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256, 271 [46] (Reeves J).
In exercising this practical judgment, a demonstration that an aspect of a case that relied on the establishment of a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all available documents or evidence was likely to be central in whether that case should be summarily dismissed. To the contrary, a case which raised a real question of fact of a substantial, plausible or weighty nature should not be so dismissed.
Perry J further summarised the principles applicable to the entry of summary dismissal pursuant to the statute in Riva NSW Ltd v Official Trustee in Bankruptcy in the following terms:[36]
[36] Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188.
•The moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding;
•The effect of provisions such as that contained in section 31A is to lower the bar. It is not necessary to establish that an action is manifestly groundless or hopeless for a proceeding to be summarily dismissed;
•An assessment of whether a proceeding has no reasonable prospects of success necessitates “necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court”;
•This discretion may includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined;
•Although the threshold for summary dismissal has been lowered, the discretion must nonetheless still be exercised with caution;
•In this context, it was noted that the discretion was concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”;
•A mini-trial is not required. However there must be a critical examination of relevant material to determine whether there is a real question of fact or law to be determined. As such each application for summary dismissal must be determined on its particular circumstances;
•The exercise involved is one of practical judgment, which will be influenced by the stage the proceedings have reached and the amount of material available to the Court;
•In applying these principles:
[T]he moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous or contradicted by all the available documents or evidence. Conversely … as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter … is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
•In conclusion, the inquiry required is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination can be made that the proceeding would necessarily fail. [37]
[37] See Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188 at [45]-[50] (Perry J).
In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration.[38] As the circumstances of the parties change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
[38] See Family Law Act 1975 (Cth) s 60CA.
However, some degree of change is a necessary corollary of life and should not of itself allow final parenting orders to be easily revisited. Otherwise, to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.[39]
[39] Rice & Asplund (1979) FLC 90-725.
The primary purpose of the rule in Rice & Asplund is to prevent “endless litigation”[40] and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[41].
[40] See Rice & Asplund (1979) FLC 90-725 per Evatt CJ at 78,905.
[41] See SPS & PLS [2008] FamCAFC 16 at [56].
Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[42]
[42] See SPS & PLS [2008] FamCAFC 16 at [58].
Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children.
It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[43]
[43] See CDJ v VAJ (1998) FLC 92-828 at 85,449
In this context, it has been said that the court should not condone a perennial football match between parents, who … seek to canvass again and again the question of custody of a child …[44] The litigation, in this case, has been protracted, expensive and time consuming.
[44] See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS FamCAFC 16 per Warnick J at paragraph 57
It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[45]
[45] See Bennett & Bennett (1991) FLC 92-191 at 78,262
However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage. If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[46]
[46] See SPS & PLS [2008] FamCAFC 16 at [59]-[60]
Given that the court will often be called upon to apply the principle expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage. It is not a rule which is to be applied formulaically.
Rather, the court must examine the evidence available and determine whether, at its highest and without determining its veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing.
Warnick J put it as follows:
…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination ‘on the merits’. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.[47]
[47] SPS & PLS [2008] FamCAFC 16 at [81]
It will frequently be the case that there is much controversy between the parties concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975.
The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation.
In arriving at its decision, the court must look to the following matters:
·the importance or seriousness of the issues raised, both individually and where necessary collectively;
·the impact that the issues are likely to have on the best interests of the children concerned;
·whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.[48]
[48] See Marsden v Winch (2009) 42 Fam LR 1
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.
That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change.[49]
[49] See King & Finneran (2001) FLC 93-079 at 88,367
In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry. In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.[50]
[50] See King & Finneran (2001) FLC 93-079 at 84
In Walter & Walter[51] the court in its discussion of this issue noted with approval the reasons of the Full Court in Marsden & Winch:[52]
Nevertheless, there are significant changes that occur which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[51] See Walter & Walter [2016] FamCAFC 56
[52] See Marsden & Winch (2009) 42 Fam LR 1 at [50]
Further, May, Ainslie-Wallace & Murphy JJ went on to say:
Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
DISCUSSION
In support of her submission that Mr Josephs’ application should be summarily dismissed, Ms Lorenzo points to the fact that X’s wishes have been professionally canvassed on a number of occasions by the court appointed expert and indeed by Ms N and the ICL. During these various processes, there has been a consistency in what X has indicated, which is that she does not wish to be compelled to spend time with her father.
The most recent intervention of the court – the final order of November 2020 – was consistent with this state of affairs and was confirmed by Ms N in her more recent interview with X. Thus there has been no change of circumstances in a material sense.
This is the central underpinning of Ms Lorenzo’s case, namely nothing of moment has changed since the final order was made and a further hearing will achieve nothing other than the possible infliction of emotional distress on X, who may perceive that her perspective is given no regard by the court.
It is Mr Josephs’ position that he was wishes the court to make an order compelling X to spend time with him. In the past, the court has been requested to make such an order but declined to do so on the basis that it did not consider it to be in the best interests of the child to do so.
The most significant event that has occurred since that time is that X is now approximately two years older but is still maintaining the same position as previously. Again, there has been, in my view, no material change of circumstances, of such materiality, to justify a re-opening of the case, emotionally wrenching as that must inevitably be for Mr Josephs personally.
In terms of the application of the provisions of Part VII of the Act, which is the part of the Act dealing with arrangements for the case of children, I acknowledge the objects and principle underlying the law, namely the right of children to know their parents and to spend time with them regularly.[53]
[53] See Family Law Act 1975 (Cth) s 60B(2).
It is the application of these principles which enliven the specific matters, which the court must consider when it determines how a child’s best interests are to be served in any order which it makes,[54] particularly the primary consideration regarding the benefits following to a child of having a meaningful level of relationship with both parent.
[54] See Family Law Act 1975 (Cth) s 60CC(2)-(3).
In this current matter, it is readily apparent that X has a significant level of relationship only with her mother. She has not spent time with her father since late 2018. This was the context in which the final order was made. As previously indicated, it is my view that it can be inferred from Mr Josephs’ consent to the order that he accepted that X was then and had been estranged from him and the only prospect of the two resuming some form of relationship was through therapeutic means, to which X herself acquiesced.
Although, I acknowledge the significance of the criterion contained in section 60CC(2)(a) of the Act and the legislative objectives and principles which underpin it, there has been no operative change in the nature of either of X’s paternal relationship since November of 2020 and more significantly, in my view, no significant evidence of any prospect of there being any change in these circumstances, as demonstrated by the potential for X to thaw in her current attitude for her father.
In these circumstances, the court must make some assessment of what any trial will achieve in practical terms. In so doing, it will be necessary for the court to examine what are the type and extent of the issues it will likely be called upon to determine and as a further corollary of this, the court must then consider what will be the likely cost, in both financial and emotional terms, of such an examination. In essence, the court must make some sort of assessment, principally from the standpoint of X’s best interests, of what any further litigation will usefully achieve.
At the centre of this exercise must be a preliminary assessment of X’s views, within the legislative context of the Act. The relevant legal principles recognise that an evaluation of X’s views represents an important component of how her overall best interests are to be assessed. The relevant exercise is classified as an additional consideration pursuant to section 60CC(3)(a).
Pursuant to the section the court is required to consider any views expressed by the child concerned and any factors which may affect the weight to be given to those views, such as the child’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[55]
[55] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) at [56].
Accordingly, a child is not required to make a decision about what the appropriate outcome is in any particular case. Nor are they required to express an explicit wish as to which parent or other significant person they want to live with or spend time with. However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Such perceptions may be ambivalent or difficult for a child to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given proper and realistic weight rather than token regard.[56]
[56] See H v W (1995) 126 Fam LR 788, 797 (Fogarty, Baker and Kay JJ).
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is a process of intuitive synthesis.[57] What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.
[57] See R & R: Children’s Wishes (2000) 25 Fam LR 712, 724 [54] (Nicholson CJ, Finn & Guest JJ).
In this case X is approximately 13½ years of age. I have no reason to consider that she is anything other than a child whose intellectual development is on a par with her chronological age. She has expressed a consistent view to several professional persons, independent of her mother, that she does not wish to engage with her father. As previously indicated, by necessary implication, Mr Josephs, by compromising the earlier proceedings, elected not to challenge the validity of these views.
More significantly, there is nothing concrete to indicate that the strong views currently held by X are not the product of her own experience and perception of her father. Again, it is implicit by his agreement to the process of he and X attempting reunification counselling that he accepted that the only possible mechanism by which X might change her perception of him was through a process of therapeutic engagement between the two.
In my assessment, a further hearing is not likely to add to this conclusion to any significant degree. In purely theoretical terms, it may be able to provide some explanation as to why the process was not successful but, in my view, it is unlikely that further litigation will result in any significant change in X’s view, which appears to be that of a mature child and one which is strongly held.
As has previously been indicated, it has consistently been Mr Josephs’ position that Ms Lorenzo has been engaged in a conscious course of conduct designed to alienate X from him and align the child with her. This is an assertion examined in the family report process but rejected by the relevant report writer.
I can understand why Mr Josephs does not accept the conclusions reached by the report but do not consider it probable that he will be able to secure the concessions which he seeks for the relevant expert, if the matter proceeds to a further hearing. Even if X has been manipulated by her mother, which I do not necessarily accept on the basis of the evidence currently available to me, there is nothing to indicate that such a finding will, of itself, change the child’s view of her father.
At this juncture, Mr Josephs is not in a position to propose an alternative therapist to Ms N or provide any evidence that another expert has some probability of having a greater level of success than Ms N did. In my view, in this sense, Mr Josephs’ position is wholly conjectural in nature. In these circumstances, I am not persuaded that the re-engagement of the litigation will serve any useful purpose.
I acknowledge that, in purely theoretical terms, the court could direct that X be physically delivered, if necessary through the agency of police, to engage with her father. However, given X’s age and views on the matter, it appears doubtful, in the extreme, that a paternal relationship could be fostered by such direct court fiat. More likely, such an intervention would do more harm than good.
In all these circumstances, I have reached the conclusion that it would not be in X’s best interests to allow the litigation to proceed further. The issues, Mr Josephs wishes to raise are not new issues and to re-examine them again, in another round of litigation, has the potential to cause X herself some level of prejudice from further unnecessary exposure to such litigation.
This is because X herself is well aware that her views have been canvassed and she herself has declined to engage with her father in therapy. For the court to persist in the face of such strongly held views, runs the risk that X herself will perceive her perspective is to given little or no weight. This is not likely to be emotionally helpful to her. Regrettably, for Mr Josephs, I have reached the conclusion that a further round of proceedings will achieve little, other than the further incurring of costs and the deepening of the rift between him and X.
In tandem with this findings, I have reached the conclusion that Mr Josephs has no reasonable prospects of achieving the outcome which he seeks. For all these reasons, I propose to dismiss his application.
Ms Lorenzo has indicated that she seeks the costs of these proceedings. This was not an issue which was closely canvassed in the proceedings before me. I will direct that the mother file and serve any application for costs within 28 days of the date of these orders and thereafter, if such an application is made, direct that the father respond within a further 28 days of that with the case to be listed for determination of the costs issue on a date to be advised.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 22 April 2022
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