Lawrence and Tan
[2011] FMCAfam 1152
•11 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRENCE & TAN | [2011] FMCAfam 1152 |
| FAMILY LAW – Children – section 118 – leave to institute proceedings – no change in circumstance – application dismissed. |
| Family Law Act 1975, s.118 |
| In the marriage of Zabaneh & Zabaneh (1986) FLC 91-766 |
| Applicant: | MR LAWRENCE |
| Respondent: | MS TAN |
| File Number: | BRC 3906 of 2009 |
| Judgment of: | Cassidy FM |
| Hearing date: | 6 October 2011 |
| Date of Last Submission: | 6 October 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 11 October 2011 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | Family Law Solutions |
THE COURT ORDERS ON A FINAL BASIS:
That all outstanding applications filed by the father be dismissed.
THE COURT ORDERS UNTIL FURTHER ORDER:
That the mother file and serve submissions in relation to costs by no later than 4:00pm on 22 October 2011.
That the father file and serve any reply by no later than 4:00pm on
5 November 2011.
That judgment in relation to costs be adjourned to 9:30am on
29 November 2011 in the Federal Magistrates Court of Australia in Brisbane.That the parties be at liberty to appear by telephone on 29 November 2011.
IT IS NOTED that publication of this judgment under the pseudonym Lawrence & Tan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3906 of 2009
| MR LAWRENCE |
Applicant
And
| MS TAN |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
Introduction
This is an application by Mr Lawrence to have leave to proceed with an application under s.118 of the Family Law Act 1975 (“the Act”) to file an initiating application in relation to two children.
The father’s case is that he has done all that was required of him to be given leave to file an initiating application in relation to the two children of the relationship, [X], born [in] 2002, and [Y], born [in] 2005. The father attended a psychologist, Dr R, on 18 December 2009, as well as on 5, 11, 19 and 28 January 2010 in relation to his reapplication for access to his children. The affidavit of Dr R was filed on 3 March 2010
On the basis of that affidavit, directions were made for Mr Lawrence to serve the mother with his application filed 7 April 2011, his affidavit and the affidavit of Dr R. A family report from Ms M was obtained.
The Father’s Material
The material that I have considered in this matter is as follows:
a)The father’s application in the case filed on 7 April 2011;
b)The affidavit of the father filed on 7 April 2010;
c)Three exhibits tendered by the father:
i)Exhibit one, being the orders sought by the father (handwritten);
ii)Exhibit two, being a bundle of the children’s reports from [school omitted]; and
iii)
Exhibit three, being the [sport omitted] scoresheet from
27 July 2010 detailing the children’s attendance.
I have also considered a further affidavit that the father filed on 5 August 2011.
The Mother’s Material
I considered the material that the mother filed, which was:
a)A response to an application in a case filed on 11 July 2011; and
b)An affidavit of Ms Tan filed 11 July 2011.
The Family Report
I also read the family report prepared by Ms M that was dated
21 September 2011 and released to the parties on 26 September 2011.
The Law
Section 118 of the Act provides:
“Frivolous or vexatious proceedings
(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings;
(b) make such order as to costs as the court considers just; and
(c) if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2) A court may discharge or vary an order made by that court under paragraph (1)(c).”
Mr Lawrence is seeking for the discharge of order 2 of the Orders dated 16 December 2009 under s.118(1)(c) of the Act. In the marriage of Zabaneh & Zabaneh (1986) FLC 91-766 is a Full Court decision in relation to that power. The court observed at page 75586:
“[75586]…The reason why a party is restrained from instituting proceedings in a case like this, is to prevent multifarious overlapping applications between the parties, which amount in essence to a harassment of the other party, and an abuse of the process of the Court, and which involve enormous expense for both the parties and the legal aid office. But, when one comes to consider whether leave should be granted to institute proceedings, particularly in family law matters, one has at some point to consider, after a certain lapse of time, whether it is reasonable to reconsider the issues.
[75587] The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.”
The Court then went on to say this:
“[75587] … In my opinion the appropriate course for his Honour to have taken was to have adjourned the matter for further consideration when that report was available. He should then, if justified, have made directions about the service of the proceedings on the wife and have given directions about the filing and service of further affidavits by each party. That in my view was the appropriate course. In those circumstances I believe his Honour was in error in proceeding immediately to the granting of leave. …”
The full court allowed the appeal.
The judge in that case considered the application on an ex parte basis. I was conscious of that case when I made the directions that I made in the present case.
In the present case I have given the mother an opportunity to file material in relation to the question of leave to proceed and I have also ordered that a family report be prepared by Ms M. I considered that it was appropriate that the family report be prepared by a report writer other than the report writer who had done three previous reports in this matter because:
a)Mr Lawrence raised concerns about that gentlemen; and
b)Some considerable time had elapsed since the children had been assessed by an independent expert.
The father’s psychologist, in section 5 of his report, concludes this:
“[5] Conclusion
I find that Mr Lawrence has no specific disorders of psychopathology. However, quite naturally, he is affected emotionally by the Court proceedings, including various insinuations such as drug taking, which were shown to be completely untrue. I would therefore support Mr Lawrence’s legal endeavours to regain access to his children on the grounds that he has completed courses on aggression and parenting, and that apart from visible aspects of cultural difference and obvious emotional reactions to the vicissitudes and exigencies of the legal proceedings, he has no intrinsic psychopathology. Fundamentally his mental health is good and he can be considered as a socially responsible person.”
The mother’s evidence, in some summary, is that the father’s attitude to her has not changed since the trial. Ms M contends at paragraph 51 of her report that she is unable to make any recommendations in this matter:
“[51] … There do (sic) not appear to be any change of circumstances which indicate how the matter can be progressed so that [X] and [X] can spend time with their father and have the opportunity to develop relationships with him in a manner where there would be no concerns about their physical and emotional safety.”
The children were interviewed by Ms M and her evaluation of them is contained at paragraphs 49 and 50 of the family report:
“[49] [X] and [X] presented as well loved and well cared for children and I have no doubt that [Mr Lawrence & Ms Tan] are providing the children with a high standard of care. It is important that their care of the children not be undermined by fears and concerns about their safety while they are spending time with Mr Lawrence.
[50] [X] aged 6 years presented as a confident and outgoing child. She was only 3 years when she last spent time with her father and she has a few, vague memories. [X] aged 9 years was highly anxious about talking to me about his father and he seemed quite fearful of him. He is very attached to his mother so it is possible that he is affected by her fears and concerns even if she has not directly expressed them to him, but he has some disturbing memories of his father. Mr Lawrence’s proposal that the children live with him and spend time with their mother is not realistic given their primary attachment to their mother; the fact that they don’t have a relationship with him and [X] is fearful of him. Mr Lawrence is not prepared to see the children at a contact centre again and it is not at all certain that the [omitted] Family Contact Centre would be prepared to extend their services to him again, even if he was prepared to try that course of action again.”
I accept Ms M’s evaluation of this matter, in particular her evaluation at paragraph 47 where she says Mr Lawrence presented himself as a “wronged man”.
“[47] Mr Lawrence presented himself as a ‘wronged man’ and a victim of racism and discrimination. He said that he and [Ms Tan] argued during their relationship but there was no violence or abuse and that he has never physically harmed her or the children. He was very critical of Federal Magistrate Cassidy and of “the system.”(sic) He alleged that [Ms Tan] resented him spending time with the children on his own and she made false allegations against him, which he disproved but he still did not get to spend time with his children. He said that it was [Ms Tan] rather than him who misbehaved at the contact centre, but he was refused further use of the service. He said that he has done everything that has been asked of him but he is still not seeing the children. According to Mr Lawrence’s view of the world; his anger, distress and frustration is completely understandable. In this, he has the support of his partner, Ms S. who presented as a quiet and reasonable person.”
I do not consider the father should be given leave to initiate an application in respect to his children, having considered the evidence of Ms M in particular. The mother’s evidence was unhelpful because it contained untested matters of fact however Ms M’s opinion and assessment guided me and I consider that her assessment is of more use than the assessment of the father’s own psychologist.
I therefore dismiss all applications with respect to the father.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cassidy FM
Date: 27 October 2011
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