Mancera & Gadsby

[2021] FCCA 489

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mancera & Gadsby [2021] FCCA 489

File number(s):

BRC 9175 of 2016

Judgment of:

JUDGE TONKIN

Date of judgment:

15 March 2021

Catchwords:

FAMILY LAW – Practice & procedure – where respondent seeks summary dismissal of application for parenting orders.

Legislation:

Federal Circuit Court of Australia Act1999, ss.17A(2), 17A(3)

Federal Circuit Court Rules 2001, rr.13.03A, 13.03B, 13.10

Federal Court of Australia Act 1976, s. 31A

Cases cited:

Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499

Dey vVictorian Railways Commissioner and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Jabbar & Gade (No 22) [2019] FCCA 2186

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd[2008] FCAFC 60

Spencer v Commonwealth of Australia [2010] HCA 28

Trkulja v Google LLC [2018] HCA 25

Number of paragraphs:

43

Date of last submission/s:

18 February 2021

Date of hearing:

18 January 2021

Place:

Brisbane

Solicitor for the Applicant:

A P Hodgson & Associates

Solicitor for the Respondent:

Michael Lynch Family Lawyers

ORDERS

BRC 9175 of 2016

BETWEEN:

MR MANCERA

Applicant

AND:

MS GADSBY

Respondent

ORDER MADE BY:	JUDGE TONKIN
DATE OF ORDER:	15 MARCH 2021

THE COURT ORDERS THAT:

1.The application filed on 14 September 2016 is summarily dismissed.

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 under the pseudonym Mancera & Gadsby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TONKIN:

INTRODUCTION

1. On 14 September 2016 the applicant (father) filed an application for parenting orders with respect to the child X born in 2011. He sought orders that the child live with the mother and spend time with the father each alternate weekend and for half the school holidays inter alia. In addition he sought an order for equal shared parental responsibility.

2. There has been a significant delay by the applicant in prosecuting this matter. Proceedings were commenced in September 2016. On 22 March 2018 the matter was listed before Judge Hughes for final hearing. The hearing was vacated. The applicant’s solicitor withdrew. On 4 March 2019 (a year later) the applicant’s solicitor filed a notice of address for service. The matter did not proceed at all for a period of 15 months. On 17 June 2020 the matter came before me. I made orders on that day. Another 6 months passed. When the matter was next heard on 18 January 2021 the applicant had failed to comply with orders made on 17 June 2020. On 18 January 2021 the respondent made an oral application for summary dismissal of the application. Directions were made for the parties to file documents by 22 February 2021. The applicant has failed to comply with those orders.

   DOCUMENTS

3. The applicant filed affidavits on 14 September 2016, 5 September 2017 and 22 February 2018, a report from Dr B on 5 September 2017 and Dr C on 6 September 2017. A Family Report was filed on 6 February 2017. The respondent filed affidavits on 1 November 2016 and 22 February 2018. No updating material has been filed by either party.

   SHORT HISTORY

4. The parties commenced a relationship in 2009 and married in 2010. X was born in 2011 as is now 9 years and 5 months old. The parties separated in October 2011.

5. Both parties were interviewed by the family consultant in January 2017. Both parties reported that their relationship was volatile. The child has not spent time or communicated with the applicant since December 2014 save he was observed briefly with the applicant for the preparation of the family report in January 2017.

   EVIDENCE

6. According to the respondent between October 2011 and February 2012 the applicant saw the child in her home until she stopped him attending due to his “violent, aggressive and intimidating conduct”. She then organised for the child to spend time with the applicant in the presence of his extended family until about February 2013. She was also present. The respondent advised the family consultant that the applicant behaved in an impatient and angry manner and eventually lost interest in spending time with the child. In April 2013 the respondent was granted a Protection Order against the applicant for a period of 2 years. In May 2013 the respondent agreed to the applicant spending time with the child at a supervised contact centre however she said he refused to attend. She then arranged for Ms D to supervise the applicant’s time with the child. The respondent said Ms D became increasingly concerned about the applicant’s conduct in particular whether he presented under the influence of an illicit substance. She said the applicant failed to contact Ms D to organise contact visits and eventually ceased spending time with X in December 2014. The child was then two years and six months old.

7. It is alleged that the applicant sent Ms D a text message on 24 October 2015 “not to contact him otherwise he would take her to Court”.

8. The applicant denied the respondent’s version of arrangements for the child. He said the respondent stopped bringing the child to contact visits. However he agreed that he “cancelled contact with X” but said this was due to the respondent’s controlling conduct and his time with the child “became awkward”.

   Concerns raised in the Family Report

9. The family consultant interviewed the applicant who advised her that he had suffered physical and mental abuse from his mother as a child and ongoing through adulthood. At the time of the interview he was his mother’s full time carer his mother being wheelchair bound. He lived with his mother and otherwise was not employed.

10. The applicant told the family consultant that he was exposed to “sexual interactions with another person a family friend” and his mother “did nothing about it”. The perpetrator had been an older boy. He said he perceived these behaviours as normal and he had “sexually abused his sister as a young girl” stating “they tried to put me in prison”. He reported receiving counselling to address this behaviour. The family consultant observed that records from the Department of Communities, Child Safety and Disabilities Services indicated that the applicant had performed oral sex on his sister and made her perform oral sex on him on a number of occasions.

11. The records from the Department of Communities reveal that at the end of 2016 concerns were raised that the applicant had physically disciplined his then partner’s child by leaving marks on his bottom that looked like they were made with a “stick or cane”. The applicant told the report writer “I disciplined him, smacked him on the bottom with an open hand it was heavy handed not meaning to be. I check. It didn’t leave a mark”.

12. Regarding an allegation made by the respondent that “he gloated about beating his sister when she was younger” the applicant told the family consultant “me and sis gloated with each other”. He told the report writer that he “smoked the odd joint here and there” but had not done that for a while. After separation he went on “drinking benders”. He blamed the respondent and her mother for this. He said he suffered from a number of mental health issues. He was diagnosed with anxiety, depression and post - traumatic stress disorder and had been on medication throughout his life a number of times. He had learning difficulties relating to reading and writing and was diagnosed with attention deficit disorder. He had suffered a head injury from a motor vehicle accident when he was eighteen and that “impacted on his understanding of things”.

13. He denied he was physically violent towards the respondent except once when he retaliated and grabbed her by the shoulder because she was “kicking my stuff”. He said the respondent verbally abused him and hit him during arguments. He denied threatening the respondent with knives or threatening to kill the respondent or X. He denied stating he would take X to Country E and explained he said to her “how would you feel if I took X to Country E”.

14. The respondent told the family consultant that the applicant was physically violent towards her pushing her in the back causing her to fall when pregnant, he strangled her with a towel and pinned her against the wall. He had thrown knives at her, tried to take X from her and threatened to take the child away and hit her over the head. He threatened to kidnap X or kill her and X and it was at that time she applied for a Protection Order. She remained concerned that he would harm the child if an order was made for the applicant to spend time. She alleged after separation the applicant would try to force her to have sex with him by pinning her down and putting a belt around her neck. Regarding his head injury the respondent said the applicant “slept a lot, was hard to rouse and easily agitated and would fly off the handle”. She said he would use his mental health difficulties to justify his violent behaviour towards her.

15. The family consultant referred to a neuropsychological report for the applicant dated February 2007 wherein Dr F indicated the applicant’s functioning ranged from “severely impaired to average”. Dr F indicated that applicant had “moderate to severe issues with planning and organisation, inhibition, self – monitoring and regulation and moderate to severe deficits relation to attention, working memory and verbal learning”. He indicated his presentation was “complex and unusual” and “it would seem that this (head) injury has exacerbated a complex array of pre-existing problems”. He observed “the difficulties that he has also cause him great anxiety and distress” noting the applicant lacks social intelligence and tends to misinterpret and misunderstand peoples’ motivations.

16. The family consultant recommended that an updated neuropsychological assessment be undertaken prior to the applicant spending any unsupervised time with X.

17. Dr B conducted a psychiatric assessment of the applicant and provided a report dated 17 July 2017. He concluded that the account of his behaviour post separation (living in a shed, giving Ms Gadsby all his money and jumping trains to avoid payment to get to work) suggested severe difficulties with organisation and planning.

18. Dr B reported “there is no doubt the presence of a psychiatric diagnosis…the combined effect of the pre-head injury personality dysfunction (from biological and experiential difficulties including sexual abuse in childhood) and the head injury sustained in 2004 result in severe social skills deficits. This means that the applicant will now always find it difficult to make friends, have a good time with friends and cope with the ups and downs of social friendship relationships.”

19. Further Dr B reported “the combined effect of the pre-head injury personality dysfunction (from biological and experiential difficulties including sexual abuse in childhood) and the head injury sustained in 2004 result in severe inability to control his emotional responses to life’s challenges…..and have resulted in a syndrome of reduced capacity for self- awareness”.

20. Dr B indicated that treatment for the applicant’s presentation was “counselling” however one on one counselling is not likely to be effective. The applicant advised he rarely visited his G.P. and Dr B concluded he was unlikely to engage in counselling.

21. Further Dr B opined that the applicant “remains at increased risk of impulsive aggressive reactions to social challenges……he has a very limited capacity to know, understand, care about and respond to varying and evolving needs of a child……the child is at increased risk of his impulsive, aggressive reactions to social challenges that a child may create”. He said “I raise serious concern that in the event of the normal behavioural challenges that the child of concern in these proceedings will create that the applicant is at risk of trying to again “black them out” (which means totally avoid and having nothing to do with them)”. He said “it is most unusual and notable that an interviewee chooses to not even articulate the age or date of birth of one of their children….this fact is testament to the nature and severity of the psychiatric issues with which the applicant presents”.

22. Dr B stated he had serious concerns regarding the applicant’s degree of functional impairment that is now permanent. He said his prognosis was poor. He said given the nature and severity of his psychiatric issues he could not see “this dislocation and conflict” changing with time.

    LEGAL PRINCIPLES

23. Rule 13.03B of the Federal Circuit Court Rules2001 (“the FCC Rules”) gives the Court power to make orders where a party is found to be in default. Rule 13.03A provides (relevantly):

    “13.03A (1) For rule 13.03B an applicant is in default of the applicant fails to:

    (a)       Comply with an order of the Court in the proceeding; or

    (b)       File and serve a document required under these Rules; or

    (c)       Produce a document as required by Part 14; or

    (d)       Do any act required to be done by these Rules; or

    (e)       Prosecute the proceeding with due diligence.”

24. Ruled 13.03B of the FCC Rules provides:

    “13.03B (1) If an applicant is in default, the Court may order that:

    (a)The proceeding be stayed or dismissed as to the whole or part of any of the relief claimed by the applicant; or

    (b)A step in the proceeding be taken within the time limited in the order; or

    (c)If the applicant does not take a step in the time mentioned in paragraph (b) – the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

    ……..

    ………

    (6)The Court may make an order of the kind mentioned in subrule (1), (2) or (4) or any other order or may give any directions and specify an consequences for non – compliance with the order that the Court thinks just.”

25. Pursuant to subsection 17A (2) of the Federal Circuit Court of Australia Act1999 (“the FCC Act”):

    “(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)the first party is defending the proceeding or that part of the proceeding; and

    (b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.”

26. Subsection 17A (3) of the FCC Act provides:

    “For the purpose of this section, a defence or a proceeding or part of the proceeding need not be:

    (a) hopeless; or

    (b) bound to fail;

    for it to have no reasonable prospect of success”

27. Rule 13.10 of the Federal Circuit Court Rules 2001 provides:

    “The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:

    (a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

    (b)the proceeding or claim for relief is frivolous or vexatious; or

    (c)the proceeding or claim for relief is an abuse of the process of the Court.

28. Recently the High Court in Trkulja v Google LLC [2018] HCA 25 revisited the relevant statutory provisions for summary judgment at [18] to [23] and referring to Dey vVictorian Railways Commissioner and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 said that “a party should not be denied the opportunity of placing his or her case before the court in the ordinary way, with the advantage of the usual interlocutory processes, unless there is a high degree of certainty about what would be the ultimate outcome of the proceeding if allowed to go to trial in the ordinary way”.

29. At [22] the Court in Trkulja v Google LLC (ibid) said:

    “[22] Subsequently, in Spencer v The Commonwealth this Court considered whether the test for summary judgment prescribed by s 31A of the Federal Court of Australia Act 1976 (Cth), namely, that the court is satisfied that the other party has “no reasonable prospect of successfully prosecuting the proceeding or ... part of [it]”, differs from the test espoused in Dey and General Steel. All members of the Court except Heydon J emphasised that the power to dismiss an action summarily should not be exercised lightly but Hayne, Crennan, Kiefel and Bell JJ added that the evident legislative purpose revealed by the text of s 31A would be defeated if its application were read as confined to cases of a kind falling within the test in Dey and General Steelhttp:// - .”

30. Section 17A of the FCC Act is identical in its terms to section 31A of the Federal Court of Australia Act 1976. In Spencer v Commonwealth of Australia [2010] HCA 28 French CJ and Gummow J at [25] said:

    “Section 31A (2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or fact or mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.”

31. Justices Hayne, Crennan, Kiefel and Bell said in Spencer (ibid) when considering section 31A said - :

    “….it is important to begin by recognising that the combined effect of subsections (2) and (3) is that the enquiry required ….is whether there is a “reasonable” prospect of prosecuting the proceeding not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail (at [52]).”

32. As to the approach to be taken in applying section 31A (equivalent to s.17A) in Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 the Court set out a number of principles endorsed by the Full Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd[2008] FCAFC 60; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) as follows:

    “In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J)…… Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.

    In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: Jefferson Ford 167 FCR at [132] (Gordon J).

    The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: Jefferson Ford 167 FCR at [127] (Gordon J).

    As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd[2008] FCA 955 at [6](Gilmour J).

    Precisely how a claim is assessed will depend on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced: Jefferson Ford 167 FCR at [126] (Gordon J).”

    DISCUSSION

1. It is now 4 and a half years since proceedings were commenced. The child has not spent any time with the applicant nor communicated with the applicant since December 2014 a period of 6 years save for the brief observation for the purposes of preparation of the family report in January 2017.

2. There were significant periods of time when the proceedings did not advance. The matter was set down for trial in March 2018. The matter did not proceed and the hearing vacated. No action was taken at all for a year. In March 2019 the applicant’s solicitor filed a notice of address for service. Again no action was taken for another 15 months when the applicant’s solicitor appeared on 17 June 2020. Orders were made that the applicant’s solicitor apply for legal aid for the purposes of the parties engaging in a Family Dispute Resolution Conference. Again no action was taken for a period of 7 months. On 18 January 2021 the respondent sought that the application be summarily dismissed.

3. I am satisfied that the applicant has failed to prosecute his application with due diligence. I am satisfied that he is unlikely to take any further action in the proceedings.

4. The respondent filed submissions on 8 February 2021. I adopt the representations made by the respondent at paragraphs 7 to 44 of those submissions.

5. The respondent submitted that since 22 March 2018 the applicant has not diligently prosecuted his application. On 17 June 2020 the applicant’s solicitor sought a further adjournment for his client to obtain a “psychological assessment report to make an application for the appointment of a litigation guardian.” In my view the applicant has had years to do that.

6. The Court made orders for the parties to engage in a Family Dispute Resolution Conference. On 18 January 2021 the applicant’s solicitor sought yet another adjournment to organise the appointment of a litigation guardian. Nothing has been done to advance that matter.

7. The respondent relied on the decision of Jabbar & Gade (No 22) [2019] FCCA 2186 where the Court considered on an application for summary dismissal the history of the matter, the expense and stress caused to a party and the disruption for the child.

8. The applicant was seeking unsupervised time with a child he had not spent any significant time with since December 2014 (a period of 6 years) or since the child was 3 years and 5 months. The applicant has neither sent the child a birthday card or Christmas card or gifts and has made no attempt to communicate with the child other than engaging solicitors on occasion notwithstanding lengthy gaps of time (6 months to several years).

9. The medical specialists in this matter have highlighted significant risks in relation to the applicant. No evidence has been adduced that the applicant has undergone any therapy or counselling in an attempt to redress the serious issues raised by the medical practitioners.

10. X is now 9 years and 8 months old. The respondent deposed that she is fearful of the applicant and extremely nervous and frightened about seeing the applicant and having to engage with him in relation to arrangements for the child.

11. I am not satisfied that the applicant has any reasonable prospect of prosecuting these proceedings. Further on the evidence before me I am satisfied that the applicant has no reasonable prospects of success. This matter has consumed a significant amount of Court time to no end. The applicant has had 4 years to diligently progress his application. The ongoing proceedings cause the respondent significant anxiety and distress and whilst ongoing have a negative emotional and psychological impact on the respondent. She is the primary carer for X. I am satisfied that it is in the child’s best interests that these proceedings be finalised. Accordingly the application filed on 14 September 2016 is summarily dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin.

Dated:       15 March 2021