Lamport & Garside
[2024] FedCFamC2F 1007
•31 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lamport & Garside [2024] FedCFamC2F 1007
File number: ADC 151 of 2023 Judgment of: JUDGE BROWN Date of judgment: 31 July 2024 Catchwords: FAMILY LAW – Parenting – two children aged 7 and 4 – where the father is currently incarcerated and will be eligible for parole in 2029 – where the father pleaded guilty to a serious offence against the oldest child – where the father seeks parenting orders to resume a relationship with the children – where the mother seeks a decree pursuant to s 102QAB of the Family Law Act 1975 (Cth) – consideration of the welfare of the children’s primary carer – whether there is a real issue of fact or law to be determined – family violence – assessment of harm – harmful proceedings order made – application dismissed Legislation: Family Law Act 1975 (Cth) Pts VII, XIB, Div 12A, ss 4AB, 60CA, 60CC, 60CD, 60CE, 65AA, 69ZN, 69ZQ, 102QAB, 102QAC
Federal Court Act 1976 (Cth) s 31A
Cases cited: Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Stativa & Stativa [2015] FamCAFC 170
Division: Division 2 Family Law Number of paragraphs: 147 Date of hearing: 15 July 2024 Place: Adelaide Counsel for the Applicant: Ms Boyle Solicitor for the Applicant: BBS Lawyers The Respondent: Litigant in person ORDERS
ADC 151 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LAMPORT
Applicant
AND: MR GARSIDE
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
31 JULY 2024
UPON NOTING
A.The Court will provide a copy of these Reasons for Judgment, Lamport & Garside [2024] FedCFamC2F 1007, to the father by express prepaid post to B Prison.
THE COURT ORDERS ON A FINAL BASIS THAT:
1.The children X born in 2016 and Y born in 2020 (hereinafter referred to as “the children”) live with the mother.
2.The mother do have sole parental responsibility and sole decision making authority for all major long-term issues for the children.
THE COURT FURTHER ORDERS THAT:
3.Pursuant to section 102QAB of the Family Law Act 1975 (Cth) (hereinafter referred to as “the Act”) and rule 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the application for parenting orders is dismissed.
4.Pursuant to section 102QAC(1) of the Act, the father, is prohibited without leave from the Court, from instituting proceedings under the Act in a court having jurisdiction under the Act, against or in relation to the mother.
5.Should the father seek leave to institute proceedings pursuant to section 102QAE of the Act, the mother is not to be notified:
(a)that an application has been made; and/or
(b)dismissed by this Honourable Court.
6.All extant applications be dismissed as finalised.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This is a parenting proceeding, which arises in an idiosyncratic and highly distressing matrix of facts, which, in my view, cannot be subject to any meaningful degree of evidentiary challenge, in this court, in proceedings commenced under the Family Law Act 1975 (Cth).[1]
[1] Hereinafter referred to as “the Act”.
Mr Garside (“the father”) and Ms Lamport (“the mother”) are the parents of X born in 2016 and Y born in 2020.
The father seeks orders, in this court, directed towards the resumption of some form of relationship between him and the two children concerned, at some indeterminate date in the future, possibly through a process of what he has characterised as re-unification counselling.
He concedes that he has been physically separated from both children, since mid-2020, due to his incarceration, firstly as a consequence of being charged and then more recently being convicted of a serious crime of violence against X.
Underpinning his application, is Mr Garside’s assertion that it cannot be in the interest of either child that the court should dismiss his application, without at least some form of investigation, involving expert evidence, in respect of the future viability of his relationship with the children, given the primacy that the Act provides for the relationship between a parent and child.
The mother seeks the summary dismissal of Mr Garside’s application on a variety of grounds, pursuant to the provisions contained in Part XIB of the Act, which is headed Decrees and orders related to unmeritorious, harmful, and vexatious proceedings.
In general terms, it is the mother’s application that the father’s application has the obvious potential to cause her and the children harm in a variety of serious and interrelated ways, which include direct psychological distress to such a degree that her capacity to care for the children will be seriously impaired.
Necessarily, if the mother’s application is granted, it is difficult to see that such an outcome could have any consequence other than the severance of any relationship between the children and their father for, at the very least, the majority of the remainder of their infancy.
Underpinning the mother’s application is her submission that to allow the application to proceed would constitute a significant act of harm to both her and X, both of whom have been diagnosed with post-traumatic stress disorder, which the court cannot countenance, given its fundamental obligation to regard the best interests of the two children concerned as its paramount consideration.
It is her case that, due to Mr Garside’s directly violent behaviour towards X – conduct to which she has also been exposed – she has been left as the sole and undisputed primary carer of both X and Y.
As such, the court has an obligation to give significant weight to how she can best discharge her parental obligations towards both children, which she asserts will be significantly undermined, if the court enables Mr Garside’s application to proceed further.
In these circumstances, the mother asserts that given the length of his incarceration – Mr Garside is not due for release on parole until 2029 – and the seriousness of his offending against the child concerned – Mr Garside has no reasonable prospects of being successful in his application.
It is incontrovertible that, in 2022, Mr Garside was sentenced, on his own plea of guilty, in Court to a term of imprisonment in respect of a charge of having assaulted X.
The offence occurred in 2020, when X was just under four years of age. He himself planned to commit suicide, concurrently with his assault on X.
However, his actions were foiled by the intervention of the mother and her prompt calling of police. After the incident, X herself was gravely ill but has thankfully physically recovered.
Given his plea of guilty, and his formal admission of the facts relied upon by the prosecution to found the charge against him, Mr Garside is not, in my view, in a position to dispute the circumstances, which led to the extremely serious charge against him.
However, it remains his position, as it did in the sentence hearing, that his overall culpability is mitigated by a degree of mental illness, from which he was suffering in the months leading up to his commission of the events, which resulted in his incarceration.
Mr Garside has been in custody since 2020, initially in hospital due to an injury sustained by him, in the assault on X, and more recently in remand and then as a sentenced prisoner at B Prison.
Ms Lamport and the children concerned have been the subject of a number of intervention orders, issued by courts in South Australia which prevent Mr Garside either coming into contact or communicating with them, other than through the mechanism of an order made under this Act, which at this stage has not been either sought by Mr Garside or forthcoming from Ms Lamport herself.
Accordingly, it is almost four years since either X or Y interacted with the father to any degree whatsoever. At this stage, Ms Lamport is vehemently opposed to either of the children having any form of relationship with the father. It is her case that both she and X remain traumatised by what occurred in 2020.
It is the father’s position, supported by evidence from his mother, Ms D, that X is not traumatised by any of the events of 2020 and has a strong positive recollection of her father. In these circumstances, he contends that it is therefore more likely than not that the children’s previously close relationship with him is capable of being reformed.
BACKGROUND
The parties were married in 2015 and, from Ms Lamport’s perspective, the date of their final separation in 2020, when Mr Garside went into custody. The parties divorced in early 2022.
During the course of their approximately six-and-a-half-year relationship and subsequent marriage, both parties engaged paid employment – the mother as a health care professional and the father as a business professional. Both parties are educated to a tertiary level.
As a result of their marriage and financial circumstances, the parties acquired property, the most significant item of which was their former family home in Suburb C, which was the location where the assault was made by Mr Garside on X. For understandable reasons, Ms Lamport no-longer wished to live in the former family home.
This property was sold in 2021, realising an amount of approximately $255,000.00. In addition, each party had accumulated superannuation. In these circumstances, it was necessary for proceedings to be brought to finalise the financial relationship between the parties and particularly to distribute the proceeds of sale of the Suburb C property.
These proceedings were commenced by the mother on 13 January 2023. Ultimately, they were resolved by a consent order, made by me, on 7 February 2024, the effect of which was that the mother received the larger proportion of the proceeds of sale of the former family home and a split from the father’s superannuation. Other orders were made in respect of the allocation of specific chattels to the father.
Thereafter, on 20 March 2024, Mr Garside filed an application, which he had prepared and handwritten himself, in the absence of both a computer and formal legal representation, in which he sought that an Independent Children’s Lawyer be appointed for both children so that their views could be canvassed in these proceedings.
Associated with this application was a request that a family report be prepared, directed towards a number of issues, which can be summarised as follows:
·The views of the children regarding their potential re-unification with their father;
·A forensic assessment of the degree of risk, if any, he presented to the children, particularly X;
·Advice as to how the children’s relationship with their father, which had been physically severed by his incarceration from mid-2020, could be potentially reinstated by a process of re-unification counselling; and
·The potential involvement, in the children’s lives, of other individuals, particularly their paternal grandparents.
In addition, Mr Garside sought to join his parents, as parties to the proceedings. In this context, it should be noted that they have attended various mentions of the case and, in their hearing, I have declined to add them as parties to the proceedings, in the absence of any formal application from them. It is my view that I am not authorised to join them as parties in the absence of any explicit wish, on their part, to be so joined. I do not consider that their joinder is necessary to resolve the issues in dispute between Ms Lamport and Mr Garside.
Essentially, Mr Garside approaches the case on the basis that it cannot be in the best interests of either X or Y for their paternal relationship with him to be summarily severed, notwithstanding his conviction for a serious crime of violence commissioned against X.
It is evident from a reading of the sentencing remarks of the Judge that it was submitted on Mr Garside’s behalf that, at the time of his offending, his compromised mental health was a mitigating factor in his favour insofar of the seriousness of his offending was concerned.
In this context, Mr Garside also seeks that any person commissioned to compile a family report in this case should be provided with the forensic psychiatric material provided on his behalf at his sentencing. He has provided some of this evidence in annexures to an affidavit filed by him on 20 March 2024. These reports are as follows:
·Dr E, a forensic psychiatrist, dated 20 August 2020, who opined that Mr Garside was then fit to stand trial and diagnosed him as suffering from a disorder with mixed anxiety and depressed mood;
·Dr F, a forensic psychiatrist, dated 19 June 2022, who had been retained by Mr Garside’s solicitors in his criminal proceedings. Dr F diagnosed him as suffering from a major depressive disorder at the time of his assault on X.
In her response to this application, Ms Lamport seeks the dismissal of Mr Garside’s application, at an early stage of the proceedings and without the appointment of an Independent Children’s Lawyer or the preparation of a family report, on two distinct but interrelated bases, namely:
·Firstly, in the highly unusual circumstances of this case, Mr Garside has no reasonable prospects of succeeding in his application to have his relationship with the children reinstated, in even the most peripheral of contexts, given the harm which has been occasioned to the family by his conduct;
·Secondly, given the subject matter of the proceedings in question, given her own and X’s particular sensitivities, for the proceedings to continue would necessarily occasion harm to her and X, in the terms contemplated by section 102QAC of the Act.
In support of her application, Ms Lamport relies on the following documents:
·The sentencing remarks of the Judge made in 2022, which Ms Lamport asserts Mr Garside is not in a position to go behind and which detail the seriousness of his offending and its premeditation, notwithstanding his psychiatric infirmity;
·A psychological report prepared by Ms G, a clinical psychologist, who has been treating the mother since 2020 and who has diagnosed her as suffering post-traumatic stress disorder and further opined that if Mr Garside’s application is progressed by the court, she would have very significant concerns for the mother’s mental health;
·A psychiatric report of Dr J, a child and adolescent psychiatrist, who has been treating X since 2020 and who has diagnosed X as suffering from post-traumatic stress disorder.
Mr Garside has been critical that he only received Dr J’s report recently and has not had a chance to consider it in any detail. During his submissions to me, he asserted that he wished to exercise his entitlement to pose questions to her, pursuant to provisions of the court’s rules, on the basis that she was to be approached as a single expert, in order to clarify some aspects of her report.
I declined to adjourn the proceedings on this basis. Given these are to be approached as child‑related proceedings, as defined in Division 12A of the Act, I was concerned at the potential for the proceedings to become unduly prolonged, which potentially might exacerbate any distress currently being felt by the mother without any great forensic illumination of Dr J’s opinion being achieved by any questions being posed to her by Mr Garside.
Pursuant to section 69ZN of the Act, the court is directed to give effect to a number of delineated principles in respect of how proceedings relating to children are to be conducted. The effect of these principles is to ensure that the court’s focus always remains on the best interests of the children concerned rather than on the perceived rights of their parents or others.
In general terms, these principles, of which there are five in number, can be summarised as follows:
·The court is to consider the needs of the child concerned and the impact the conduct of proceedings may have on that child;
·The court is to actively direct, control and manage proceedings involving children;
·The court is to conduct proceedings to ensure a child, or children and parties are safeguarded from exposure to family violence;
·Proceedings are to be conducted in a manner that will promote cooperation and child-focus between the parties concerned; and
·Proceedings are to be conducted without undue delay, formality and legal technicality.
In this context, pursuant to the provisions of section 69ZQ(1)(a) the court has authority to decide which issues raised by the parties require its full investigation and hearing and which may be disposed of summarily.
In this context, Mr Garside has indicated that one of his motivations for wishing to pose questions of the various experts relied upon by Ms Lamport is his perception that she (the mother) is intent on alienating the children from him and that, given Ms Lamport has returned to the workforce and holds a demanding professional position, she is to be regarded as a person with a greater than average degree of psychological resilience.
Mr Garside is entitled to his views. However, it is axiomatic that the children are currently not spending any time with him as a consequence of his actions, which have led to his incarceration. In addition, in my view, the degree to which the court should investigate his opinion that Ms Lamport is a person of some emotional robustness must depend on the overall circumstances which give rise to these proceedings.
Necessarily, any court proceedings have the potential to be emotionally traumatic for the individuals concerned in them. In exercising its discretion, arising under any of the various provisions of Part XIB of the Act, the court must weigh up and balance many competing factors.
Although the court must be mindful of Mr Garside’s entitlement to have a procedurally fair hearing, this does not mean he has an untrammelled entitlement to examine any issue which is of interest to him. In this context, the court must also bear in mind the child-related nature of these proceedings and the fact that this case is fundamentally an inquiry into what is the best outcome for the children concerned.
Part VII of the Act deals with orders relating to children. This Part has recently been subject to significant amendment. However, it remains the case that before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration.[2]
[2] Family Law Act 1975 (Cth) ss 60CA and 65AA.
How a court determines what is in a particular child’s best interests is by reference to a list of six matters contained in section 60CC(2) which can be summarised as follows:
·The arrangement which will best promote the safety of a child particularly from being subject to family violence, abuse, neglect or other harm;
·Any views expressed by the child;
·The developmental, psychological, emotional and cultural needs of the child;
·The parental capacity of each person who has or is proposed to have parental responsibility to promote such developmental, psychological, emotional and cultural needs;
·The benefits accruing to the child of being able to have a relationship with his or her parents and those who are significant to the child, where it is safe to do so; and
·Anything else that is relevant to the particular circumstances of the child.
In this context, it is to be noted that although the court is directed, as one of six factors which are not ranked in overall importance, to consider the possible benefits which may accrue to a child from having a relationship with a parent, it is subject to the proviso that it should be safe to do so.
In addition, I acknowledge that any views expressed by a child are also a matter which the court must consider. Section 60CD delineates the means by which a court may inform itself of any views expressed by a child. These include a family report and the appointment of an Independent Children’s Lawyer. However, the court is not mandated automatically to canvas a child’s views through these mechanisms and, in my view, it retains a discretion not to do so by any such specific intervention.
In my view, this follows from the provisions of section 60CE, which reads as follows:
Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any manner.
THE SENTENCING REMARKS OF DAVISON AJ
As I will outline in greater detail, in due course, one of the tasks which the relevant legislation confers upon me is to attempt to assess the harm, which these proceedings may induce in the parties concerned or any child who is subject to them.
The concept of harm in this context is defined by the provisions of section 102QAC(2) and encompasses both major mental distress and consequences which may have a detrimental effect on a parent’s capacity to care for a child.
In these circumstances, although I have no wish to cause any distress to the parties involved in this case by refreshing their memories of the events in question, in my view, in order to assess their potential psychological impact on both Ms Lamport and X, it is incumbent upon me to set out the circumstances which give rise to the current proceedings.
In addition, it must be the case that these matters are relevant to how the court assesses the various factors arising under section 60CC(2), particularly the safety of the children concerned including in an emotional sense and the overall parental capacity of each party.
In her sentencing remarks, the Judge indicated that she was sentencing Mr Garside in respect of his plea of guilty to a charge of the assault of X. At the time, she accepted that Mr Garside had intended to commit suicide by the same method which he had utilised in his assault on X.
The context of the overall offending was that Mr Garside was distressed at the fact that his marriage with the mother had fallen into difficulties. Some of these difficulties related to an infatuation Mr Garside had formed with a friend of the mother, which had led to him being cautioned by police in respect of stalking this person.
In 2020, in a state of emotional distress, Mr Garside had yelled at Ms Lamport, in the presence of the children, who had become unsettled. Mr Garside then attempted to compel Ms Lamport to look at a photo montage of the family, which he had uploaded onto their television.
In these circumstances, Ms Lamport summonsed the police to the home, who spoke to the parties separately and counselled them to stay in separate parts of the house away from each other – Ms Lamport upstairs; Mr Garside downstairs.
After the police left the premises, Ms Lamport went to bed upstairs but left her bedroom door, and that of X’s room, open. She was worried about the situation, which from her perspective remained labile. She did not want to fall asleep but did so. She awoke around midnight and went to check X’s room but could not see her.
As a consequence, Ms Lamport went downstairs and tried to open the door of Mr Garside’s room but found it to be locked. The sentencing remarks described what happened next:
You [Mr Garside] said 'Go away, we are having a little sleep now'. She [Ms Lamport] heard her daughter groan and heard [noises]. She ran upstairs and rang 000. A short time later police arrived. They could not get in the door, you [Mr Garside] had barricaded yourself in the room. Eventually they got into the room, they took your eldest daughter out of the room, she was unconscious. The police officers tried to revive her until the ambulance arrived. They then took her to hospital.
You were also in the room. They observed you on the bed unconscious. You too were taken to hospital.
When the police searched the scene they located [dangerous items]. They located three suicide notes. These were written to your father, your youngest daughter and your wife. Subsequent investigations in this matter, revealed that you had purchased the [items] two days earlier. It seems that you may have been making these plans whilst you were away. Police also found written instructions in relation to how to fulfil your plan.
What is clear is that at the time the police left, you had already determined this course of conduct. It was pre-planned and premeditated. Fortunately, your daughter has made a good recovery and is unlikely to have sustained any permanent injury.[3]
[3] See Annexure “A” to the affidavit of Ms Lamport filed 21 May 2024 at page 8.
It is clear from these remarks that the mother was compelled to endure the torment of having to wait for the police and ambulance to arrive not knowing what was happening on the other side of the locked door. Fortuitously, it seems apparent that the professional emergency responders came expeditiously and did what was required of them professionally. Ms Lamport was then exposed to the sight of her unconscious daughter.
In this context, it is necessary to delineate the relevant legislative provisions which provide the definitional nature of family violence in child-related proceedings. Family violence is defined by section 4AB(1) of the Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
•an assault;
•a sexual assault or other sexually abusive behaviour;
•stalking;
•repeated derogatory taunts;
•the killing of an animal;
•preventing the maintenance of family ties;
•intentionally damaging or destroying property; and
•the withholding of financial support.
The above incidents are not, in themselves, definitional of family violence. Rather they are examples of conduct which may constitute family violence. The definition to be applied is contained in sub-section (1).
In my view, the actions of Mr Garside, as described by the sentencing judge, can only be described as constituting an extreme example of violence, which inevitably must have caused Ms Lamport to have been fearful. In the sentence, the judge said as follows:
The body-worn footage from the police officers who were the first responders sets out very clearly the terror and fear that your partner had and the concerns of those first responders in dealing with your daughter.[4]
[4] See Annexure “A” to the affidavit of Ms Lamport filed 21 May 2024 at page 8.
In my view, it is hard to conceive of a set of circumstances, which could have been conceivably more terrifying for the parent of an infant of X’s age.
What was the immediate reaction of X to the incident is unclear but, in her remarks the judge indicated that it took some weeks for her to recover, during which period she was wobbly, confused, her speech regressed and she had memory and cognitive difficulties. She was fatigued for around nine months.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effects of family violence. Again, in section 4AB(4), the legislature has included examples of conduct which may amount to such exposure, which include:
•overhearing threats;
•seeing or hearing an assault;
•comforting or providing assistance to a member of the child’s family, following an assault;
•cleaning up after property has been damaged; and
•being present when police attend an incident involving an assault.
Again, these examples are not definitional of whether a child has or has not been exposed to family violence. What is pivotal is that the child concerned experiences its consequences. It is clear that regardless of whether X was conscious when the police and ambulance arrived, she has experienced the effects of being exposed to an episode of extreme family violence, which emanated from her father.
The sentencing judge accepted that Mr Garside had been suffering from depression since around the time of Y’s birth, which also coincided with the onset of the Covid-19 pandemic, which compelled him to work from home. In this context, Mr Garside sought psychological treatment, which in Dr F’s view was far from adequate.
The other major stressor in Mr Garside’s life, at this time, was the disintegration of his marriage, which led to Mr Garside developing a sense of hopelessness. In her report, Dr F opines that this precipitated a major depressive disorder in the father, which was also characterised by paranoia and anger directed towards Ms Lamport. In this context, the sentencing remarks include the following:
[Dr F] also says that she suspects there was an element of vindictiveness and a desire to inflict maximum hurt on your wife by your decision to harm your daughter, apparently in a tit-for-tat manner that was commensurate to the callous manner that you perceived your wife had treated you, towards the end of the marriage and the hurt and rejection you suffered. In [Dr F]'s opinion this is evident from the suicide note to your wife, as well as the note to your younger daughter that appeared to blame your wife for your suicide.
You were in a profound state of anger directed towards your wife, feeling sorry for yourself and in an egocentric emotional state, [Dr F] says. She goes on to say that the experience of suicidal ideation is a common feature in major depressive disorders, however the majority of clinically depressed individuals do not go on to create a suicide plan or develop homicidal thoughts.
Your behaviour strongly suggests a range of maladaptive personality traits that were driving your reasoning. She believes that you possess several [mental health conditions] that have their genesis in your childhood insecurities.[5]
[5] See Annexure “A” to the affidavit of Ms Lamport filed 21 May 2024 at page 10-11.
The evidence available to the judge indicated that Mr Garside had planned the offence and, as such, it was to be regarded as both premediated and motivated by vindictiveness directed towards Ms Lamport. Clearly, the sentencing judge also regarded Mr Garside’s action as a most severe form of parental abuse and breach of trust.
In my view, these are factors which are influential in how I assess the degree of potential psychological harm and distress, which the continuation of the proceedings is likely to represent to Ms Lamport. Essentially, Ms Lamport would be expected to take part in proceedings instigated by a person who wished to harm her permanently in the most significant way which he could conceive.
It is difficult to conceive, even in the absence of expert evidence that such an occurrence would have anything other than negative implications for her and her state of on-going mental functioning. In this context, the court must assess what utility will be achieved, if the proceedings continue given the salient considerations which arise under the Act.
In my view, significant controversies are likely to arise as to both the emotional and physical safety of the children concerned; the degree of parental insight of each of the parties concerned; how best to maintain the psychological efficacy of the children’s undisputed primary carer; and what concrete benefits are likely to arise for the children, given the fact that Mr Garside will remain incarcerated for at minimum the next five years.
THE MOTHER’S EVIDENCE
Ms Lamport deposes that she has been distressed by having to respond to Mr Garside’s application, which she finds triggering and emotionally disturbing. It has caused a relapse in her condition. She indicates the following:
Responding to these parenting issues is impacting me greatly. It has been making my [sic] physically sick, causes me significant distraction from daily tasks, interferes with my sleep, causes a flare up of my anxiety symptoms such as hypervigilance, panic, intrusive thoughts, and negative memories. It triggers depressive thoughts and feelings and creates a sense of powerlessness, hopelessness, and a resurgence of my concerns for the children and my safety. All of this directly impacts the children and me by increasing my stress, which I try to hide from the children but children are intuitive and the stress is so extreme that it is difficult for me to completely hide my increased stress from them. It affects my ability to work which impacts the children as I am their sole financial provider. It affects me [sic] ability to live my life on a daily basis in the way I want to and need to and affects me being the best parent that I can be to [X] and [Y].[6]
[6] See affidavit of Ms Lamport filed 2 May 2024 at [6].
Mr Garside characterises these are statements as exaggerated and inconsistent with his impression that Ms Lamport is able to work and apparently discharge other aspects of her life. In my view, given the nature of these proceedings, I have an entitlement to determine the extent to which any evidentiary controversy, arising in a child related proceedings, is to be examined.
In this context, on the one hand I must balance the extraordinary trauma which must have been generated in Ms Lamport from the event of 2020 with any forensic advantage likely to be derived by Mr Garside from cross-examining her about her current level of reaction to them. I am therefore not inclined to permit any examination of this aspect of Ms Lamport’s evidence.
MS G’S REPORT
Ms Lamport commenced seeking treatment from Ms G in 2020 and has consulted with her regularly in the period since on at least a monthly basis, after seeing her more intensively in the period immediately following the incident which gives rise to Ms G’s diagnosis of PTSD.
Ms G’s treatment has focussed on managing her patient’s extreme fear, which has been noted to increase when Ms Lamport has any form of communication with Mr Garside, including indirectly via her solicitor.
Although Ms G notes that her patient has the support of family, friends and professional colleagues, her need to maintain a comparatively normal life for herself, in extremely challenging circumstances has been extremely onerous for her and has impacted on her mental health.
In this context, Ms G opines as follows:
My clinical concern is an escalation of further (if possible) negative impact on [Ms Lamport]'s mental health and her subsequent living and coping strategies. [Ms Lamport] has a deep and natural need to keep her children safe - this has already been traumatically challenged due to the [assault] of her child by [Mr Garside]; activating a VERY real fear of them not being safe in the future. My concern for [Ms Lamport] is also heightened because [Ms Lamport] has reported she has no evidence or reassurance of [Mr Garside] or his family of the children being safe: this will likely contribute to her being in a constant state of extreme fear and helplessness for which she is not responsible or able to control.
In therapy we are already addressing [Ms Lamport]'s fears for herself and the children for when [Mr Garside] may be released from his custodial sentence. We have also addressed the requests for contact and the unwarranted, unwanted and unexpected presence of [Mr Garside]'s father at her property. These events (and the likely event of release) have additionally has been the cause of significant mental health disturbance.
It is a mother's (and in fact all parents') natural instinct to keep their children safe, the psychological and emotional damage caused when her daughter was harmed, is extreme. [Ms Lamport] is already heightened to anything that may cause her children to be unsafe; the granting of orders as sought by [Mr Garside] would thus, in my professional and clinical opinion have a profoundly negative, disturbing and long lasting effect on [Ms Lamport]. This is then likely to affect the children's well-being.[7]
[7] See Annexure “C” to the affidavit of Ms G filed 16 May 2024 at page 33.
One of the aspects of Ms G’s opinion is her assessment that Ms Lamport continues to fear that Mr Garside may harm her or her children upon his release and this fear triggers, for her, an extreme emotional reaction in any contexts in which she is called upon to interact with him. At this point of time, the only area in which she is likely to have interact with Mr Garside is through this litigation and possibly through any contact initiated by members of his family.
In my view, given the nature of Mr Garside’s assault and the findings made – based on the psychiatric assessment of Dr F – Ms Lamport’s reaction to her current situation as detailed by Ms G does seem to me to be objectively unreasonable. Given what occurred to her, it would be extraordinary for Ms Lamport not to be suffering from PTSD.
In these circumstances, in my view, it would be unrealistic for Ms Lamport to be anything other than extremely fearful; concerned about the safety of her children; and highly protective of them; given what Mr Garside did and what was at least part of the motivation for his actions, namely, to punish her in the most visceral way open to him.
In this context, it is incumbent on the court to consider the obviously detrimental consequences for Ms Lamport personally of the current litigation continuing and also its indirect consequences, for X and Y, if their undisputed primary carer suffers some level of emotional impairment, which impact upon her overall parental capacity.
In this context, I bear in mind the two of the current section 60CC(2) factors, namely arrangements to promote the safety…including exposure to harm and family violence of a person who has parental responsibility for the child and the developmental, psychological and emotional need of the child.
I accept Ms Lamport has been exposed to family violence of the most severe kind conceivable. She has sole parental responsibility for X and Y because Mr Garside is not in a position to discharge any such responsibility. The best interests of the children dictate that their emotional needs are supported in a way that also supports those of their primary carer.
DR J’S REPORT
Dr J is a child and adolescent psychiatrist, whom X has been consulting, on multiple occasions (51) since late 2020. Dr J has diagnosed X as suffering from post-traumatic stress disorder. The symptoms of this have been severe emotional distress; sleep disturbance; enuresis; behavioural and speech regression.
Clearly, X is not yet eight years of age and was not yet four when the attempt on her life was made. She cannot be regarded as being cognitively mature. In this context, Dr J has engaged with her through play therapy involving dolls. Dr J reports she has thrown away the male dolls and stated that she does not have a dad.
As a result of this play and the statements made by X, Dr J has indicated that she is concerned at the intensity of X’s feelings about her father. Dr J also reports that X has been distressed and demonstrated emotional regression after visiting her paternal grandmother.
This observation is at odds with the evidence of Ms D who has deposed that X, when visiting her home, saw a photograph of her father, whom she recognised and seemed untroubled by it.
Dr J opines as follows:
It is my professional opinion as a Child and Adolescent Psychiatrist that the incident occurring [in mid] 2020 caused [X] to suffer with severe Post Traumatic Stress Disorder. In addition the severe impacts that this incident has had upon [X]'s mother, her key caregiver and attachment figure, caused further destabilisation to [X] due to the trauma experienced by her mother.
A child like [X], who has experienced a near death experience, at the hands of their own caregiver experiences grave anxiety, fear and confusion regarding their safety and the safety of their loved ones. A child like [X] who has experienced a trauma this severe requires extra sensitive care and decision making to protect the child from further trauma reminders, and future risk. Contact with [Mr Garside] would be an acute trigger of PTSD for [X]. It would also cause further harm to the health of [X]'s mother [Ms Lamport]. Further prolonging psychological harm to [X]'s mother [Ms Lamport] through seeking contact with her daughter continues to further impact negatively upon the psychiatric health and development of [X].
It is my professional opinion as a Child and Adolescent Psychiatrist that [X] should not be required to visit [Mr Garside] as she experienced a near death experience and subsequent and ongoing PTSD as a result of an incident perpetrated by him towards her. This means that should [X] see him again this would be greatly injurious to her psychiatric health and injurious to [X]'s ongoing development. No access visits with [Mr Garside] can be supported due to the risk of ongoing harm and worsening of [X]'s current clinical state.
In my professional opinion, victims suffering from PTSD perpetrated by an offender should not be required to revisit the perpetrator when they do not wish to or do not feel safe to. During the consultations over several years I have observed that [X] has repeatedly and persistently expressed her own wishes though [sic] both play and her own words verbally that she does not feel safe or willing to have contact with [Mr Garside].[8]
[8] See Annexure “B” to the affidavit of Dr J filed 11 July 2024 at page 27.
It would appear to be Mr Garside’s position that he does not accept Dr J’s assessment of X’s views, which are that X remains traumatised by her father’s actions and, as a result continues to be fearful of him and opposed to interacting with him, which he asserts is not supported by the paternal grandmother’s experiences.
In these circumstances, it is his preliminary position that the court needs to engage its own expert to canvas the child’s views. As previously indicated, it is my view that the court is not obliged to seek out any child’s views. How it does so must depend on the overall circumstances of the case in question. Given the obvious vulnerability of X, I am not inclined to order the preparation of a family report or to engage an Independent Children’s Lawyer for her.
LEGAL CONSIDERATIONS
As indicated above, these are child related proceedings to which the provisions of Division 12A of the Act apply. The legislative intent of this Division is directed towards the minimisation of the potentially deleterious consequences for the children affected by the litigation concerning them.
In my view, it is axiomatic that as a consequence of what occurred in mid-2020, X and Y are emotionally vulnerable children, particularly X. In the circumstances the court has an obligation to prevent them being exposed to unnecessary litigation, involving the resolution of issues which are likely to be extraneous to their overall best interests, when the various considerations set out in section 60CC(2) are considered.
The provisions of Part XIB are ancillary to these powers and provide two major means of sparing children and their relevant carers from such unnecessary litigation, which can be characterised under one of three categories, which can be summarised as follows:
·Unmeritorious proceedings on account of an absence of reasonable prospects of success;
·Proceedings which are harmful to a party or a child concerned in them;
·Vexatious proceedings.
This case is concerned with the first two of these categories, which are covered by the provisions contained in section 102QAB and section 102QAC.
Firstly, section 102QAB of the Act provides a mechanism for the court to summarily dismiss an application. In particular, sub-section (2) provides as follows:
The court may make a decree for one party (the first party) against another in relation to the whole or any part of a proceedings if:
(a) the first party is prosecuting 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 102QAB(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.
In Lindon v Commonwealth of Australia (No 2) (“Lindon”),[9] Kirby J provided a list of principles applicable to summary judgment, of which the Full Court of the Family Court, in Stativa & Stativa,[10] 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.[11]
[9] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
[10] Stativa & Stativa [2015] FamCAFC 170.
[11] See Stativa & Stativa [2015] FamCAFC 170 at [8] (Ainslie-Wallace, Murphy & Aldridge JJ).
In applying these principles, the court must not overlook what the High Court characterised as the negative admonition contained in provisions analogous to section 102QAB(3) of the Act [section 31A of the Federal Court Act 1976 (Cth)] that a proceedings, 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’.[12]
[12] See 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.[13]
[13] See Spencer v Commonwealth of Australia (2010) 241 CLR 118, 139 [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ).
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.[14] 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.[15]
[14] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 415 [12] (Weinberg J).
[15] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 415 [13], citing 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.[16]
[16] 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:
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.[17]
[17] See Lindon v The Commonwealth (No 2) (1996) 136 ALR 251, 256 (Kirby J).
In Przybylowski v Australian Human Rights Commission (No 2),[18] 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.[19] In my view, similar considerations must apply to section 102QAB of Act given the analogous provisions contained in sub-section (3).
[18] Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473.
[19] See Przybylowski 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 of the Federal Court Act 1976 (Cth) involved the making of value judgments 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:[20]
[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.[21]
[20] Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256.
[21] See 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.
Justice Perry further summarised the principles applicable to the entry of summary dismissal pursuant to the statute in Riva NSW Ltd v Official Trustee in Bankruptcy[22] in the following terms:
[22] 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 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 include 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. [23]
[23] See Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188 at [45]-[50] (Perry J).
CONCLUSIONS
As previously indicated in all matters concerning parenting orders, the best interests of the child concerned is the paramount consideration. For this reason, I have attempted to identify the various criteria applicable under section 60CC of the Act and examine the material relevant to each of them.
In this context, I also note that each case must be determined by reference to its own idiosyncratic circumstances and, in a case relating to a child, to the principles contained in Division 12A. In this matter, there can be no rationale submission other than that both the mother and X have been subject to an episode of family violence of the most debilitating and serious kind. It is beggars belief that the incident could be categorised as not having long-lasting and grave emotional consequences for each of them.
In these circumstances, it seems to me to be improbable in the extreme that the evidence provided by Ms Lamport, Ms G and Dr J can be demonstrated by Mr Garside to be improbable or tenuous in nature. It clearly demonstrates the on-going trauma suffered by both the mother and X. It also seems to me to be unlikely that this evidence with be effectively contradicted by anything flowing from the testimony of Ms D or from a family report or an Independent Children’s Lawyer.
Mr Garside is currently subject to a lengthy sentence of imprisonment in respect of a crime involving family violence against his eldest child. I appreciate that there are elements in the case which mitigate his conduct on the basis of his mental ill-health. At the same time, his own forensic psychiatrist found aspects of a mental health condition; a lack of acceptance of responsibility for his actions; and significantly that he was motivated by a sense of vindictiveness against Ms Lamport.
On any view, these are factors which reflect poorly on him and must be regarded as being very significant in respect of any assessment of his parental capacity, particularly to meet the psychological and developmental needs of the two children concerned.
As a consequence of his conduct, Mr Garside is not in a position to play any meaningful role in the parenting of either child and for readily understandable reasons, not the least of which is the potency of the violence to which she has been exposed, it is not realistic that Ms Lamport can be anticipated (or indeed required) to be responsive to any parenting arrangement which involves Mr Garside.
The provisions of section 60CC(2)(a) require me to consider what arrangement will promote the safety of X and Y. This includes an assessment of how to promote the safety of their primary carer. Due to Mr Garside’s incarceration, he is not in a position to be able to provide any level of care whatsoever to the two children concerned and he will remain unable to do so for the next five years or so.
In these circumstances, the primary focus on any case to be initiated by Mr Garside will inevitably be on how to keep both Ms Lamport and the children safe in an emotional and psychological sense. Given the contents of the expert evidence in this case, and the context in which it has been produced – a life threatening assault on one of the children to which the mother was directly exposed – it seems to me to be axiomatic that Mr Garside will be found to represent a significant threat to the emotional integrity of Ms Lamport and as such there is no real question of fact or law to be determined in the case.
The basis of Mr Garside’s application is that it would be imprudent for the court to dismiss his application without, at the very least, seeking some form of independent evidence regarding the nature of the children’s relationship with him and canvassing their attitude towards him. I accept that to dismiss Mr Garside’s application, at this juncture, contains the probability that his relationship with the children will be severed for the foreseeable future and this, for self‑apparent reasons, is a significant thing for the court to do and should not be approached lightly, particularly in the context of an interlocutory hearing.
Against this submission must be balanced the moment of the matters which led to Mr Garside being rendered absent from the day-to-day circumstances of the children’s lives. As indicated above, given his plea of guilty, Mr Garside is not in a position to dispute those matters. In addition, it would seem to me that any form of relationship whatsoever, even the most cursory, which Mr Garside may wish to pursue with the children will depend on the cooperation of Ms Lamport, which is unlikely, in the extreme, to be forthcoming for the indefinite future.
I appreciate that I am making a value judgment about the nature of the evidence which will be available if the case proceeds further. However, given the idiosyncratic evidentiary circumstances of this case, particularly the extreme nature of the family violence arising in the case and the potential for further harm to be occasioned to both Ms Lamport and X, it is a value judgment which I believe is an appropriate one to be made.
In these circumstances, I conclude that Mr Garside has no reasonable prospects of being successful in his case and there are no real issues of fact or law which the court needs to determine in this matter. On this ground alone his application should be dismissed.
In addition, I am satisfied that, given the evidence currently available to me, I can have reasonable grounds to believe that the continuation of the proceedings would result in both Ms Lamport and X suffering harm.
However, although I accept that the continuation of the current proceedings is likely to be ipso facto harmful to each of them, I concede that, given the structure of the relevant provision, it cannot be taken as a given that the court should therefore restrain Mr Garside continuing with his application on this ground alone, given the manner in which it is drafted.
Section 102QAC(1) reads as follows:
(1)A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:
(a)the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b)in the case of child-related proceedings (within the meaning of Part VII) — the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
It is clear that the power to make a harmful proceedings order is a discretionary one and is potentially prospective in nature – able to made by the court to prevent further proceedings after an earlier proceeding or proceedings have presumably been determined by the court and from its analysis of those proceedings the court is able to conclude that further proceedings would be harmful to either a party or a child concerned in them.
In this context, I concede that there have been no such previous proceedings, regarding the parties or children in this case. In these circumstances, it may be open to Mr Garside to argue that the provision can have no application to him given the absence of any previous proceedings between him and Ms Lamport, other than the property proceedings, which were expeditiously resolved without the need for any type of extended hearing. For the reasons which follow, I am not persuaded that this is necessarily the case.
This is a new provision, which has only been in effect since early May of 2024. Accordingly, in my view, it is likely to be useful for the court to have regard to the contents of the relevant explanatory memorandum to ascertain the legislature’s intentions in respect of the extent of the application of the harmful proceedings provisions, particularly the nature of any constraints on the discretion and whether there are any specific preconditions which need to be satisfied before such an order may be made.
In respect of section 102QAC(1) the relevant memorandum indicates as follows:
The intention of this power is to allow the courts to proactively intervene, or intervene upon application by a party to the proceedings, before further applications are served on the other party, and therefore limit the detrimental effect, major mental distress or psychological harm that may result from further applications. [24]
[24] Explanatory Memorandum, Family Law Amendment Bill 2023, [322].
In my view, it is significant that the power is characterised as being able to be utilised to allow the court’s intervention to be made proactively to limit distress. On the evidence available to me I accept unequivocally that the continuation of the proceedings will occasion severe psychological distress to both Ms Lamport and X. It is also significant, in my view, that such intervention, pursuant to the provisions of section 102QAC(4), can be made by the court on its own initiative.
In this context, it is Ms Lamport’s case, supported by the evidence of her treating psychiatrist Dr J, that the proceedings have already caused her emotional anguish and will continue to do so if they proceed further. In this sense, although the current proceedings are obviously at a nascent stage, her application to have them dismissed does have a prospective quality, nonetheless.
In my view, it would make a nonsense of the provision, if the court, having formed a view that relevant proceedings are likely to cause harm to a party or child, could only intervene under the section, after the conclusion of such harmful proceedings, and only in respect of prospective proceedings.
Section 102QAC(2) provides a non-exhaustive list of matters which may constitute harm for the purposes of the provision. In reads as follows:
(2)For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a) psychological harm or oppression;
(b) major mental distress;
(c) a detrimental effect on the other party’s capacity to care for a child;
(d) financial harm.
For the reasons provided above, it seems to me to be the case that the continuation of these proceedings, including the engagement of the interventions proposed by Mr Garside, has the potential to cause harm to both Ms Lamport and X in the sense envisaged in the subsection and as a result to be harmful to them.
In this context, in my view, the manner in which the legislature has elected to frame section 102QAC(3) is illuminating. It reads as follows:
(3)In determining whether to make an order under subsection (1), the court may have regard to:
(a)the history of the proceedings under this Act between the first party and the other party; and
(b)whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c)the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
Again, the explanatory memorandum indicates that this list is not exhaustive in its nature.
I accept that this is not a case in which Ms Lamport has been subject to repeated applications regarding Mr Garside’s on-going relationship with the children. However, it seems to me to be axiomatic that her involvement, albeit peripheral, with the Court proceedings involving the prosecution of Mr Garside, must have had a cumulative effect with the current proceedings in occasioning distress to Ms Lamport.
In general terms, it seems to me to be unarguable that to utilise ordinary parlance, given the highly unusual circumstances in which these proceedings arise, that Mr Garside’s application must be regarded as psychologically corrosive and so harmful to Ms Lamport and as a consequence of that it should be curtailed in the exercise of either of the court’s discretions arising under either section 102QAB or section 102QAC.
The relevant structure of Part XIB envisages any person who is subject to either a potential harmful proceedings order or an application seeking summary dismissal should be given an opportunity to be heard by the court. Clearly, although due to his incarceration Mr Garside faces some difficulties in this regard, he has been given an opportunity to be heard.
Necessarily such procedure envisages the court balancing the need to ensure a proper degree of procedural fairness for any given applicant with the need to protect both parties and children from exposure to unnecessary and harmful proceedings, particularly those involving family violence and those which are unmeritorious. In the current matter, in my view, there is a factual overlap in the application of the two distinct provisions to this case.
Firstly, given the overall structure of Part VII of the Act, it seems to me that Mr Garside has no realistic or reasonable prospects of advancing his case in respect of the two children concerned given his current circumstances and what gave rise to them.
Secondly, given those circumstances, it is, in my view, axiomatic that the continuation of the proceedings must be regarded as being liable to bring harm to both X and her mother of the most severe kind.
Ms Lamport and X were exposed to family violence, of such a degree of intensity, that it cannot be doubted that each, but particularly the mother, will live with it for the foreseeable future and as a consequence, it must be the case that each should be regarded as extremely vulnerable, both now and prospectively from the continuation of the current litigation and the institution of further proceedings in future.
It seems to me that their situation falls within the category of cases to which the legislature intended Part XIB of the Act should apply. In my view, it would make a nonsense of the applicable provisions, in an extreme case such as the present one, for the court to authorise the various inquiries which Mr Garside proposes, on the doubtful possibility that they will reveal something favourable to him.
In these circumstances, it is my view, that the court, in the exercise of the various discretions conferred on it, both under Part XIB to control unmeritorious and harmful proceedings and pursuant to Division 12A of Part VII to conduct child related proceedings, the court should dismiss the current application and make a harmful proceedings order under section 102QAC(1) restraining the father from continuing with his current application or instituting further proceedings.
This order engages section 102QAE of the Act. Mr Garside may seek the court’s leave, at some point in the future, to institute further proceedings.
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 forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 31 July 2024
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