Partos and Merritt

[2011] FamCA 862

FAMILY COURT OF AUSTRALIA

PARTOS & MERRITT [2011] FamCA 862

FAMILY LAW – PROCEDURE – Ex Parte Application – Application to file Contravention Application

Family Law Act 1975 (Cth)

APPLICANT: Mr Partos

RESPONDENT: Ms Merritt

FILE NUMBER: BRC 1985 of 2007

DATE DELIVERED: 28 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 28 October 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: Ex parte

Orders

IT IS DIRECTED THAT:

1. The Applicant father be granted leave to file his Contravention Application and corresponding Affidavit within seven (7) days of today.

2. Thereafter, the Applicant father serve the Contravention Application and any corresponding Affidavit upon the Respondent mother by post to PO Box …, Suburb B, Queensland, …, as soon as reasonably practicable, but within seven (7) days of filing the Contravention Application.

IT IS ORDERED THAT:

1. The Applicant Father’s Contravention Application be listed for hearing before a Judicial Officer, other than Justice Bell, on the earliest possible date.

2. The Applicant Father’s Application to stay Order 3 of Justice Bell’s Orders, made 18 March 2011, be adjourned to the Judicial Officer hearing the Contravention Application. 

IT IS NOTED that publication of this judgment under the pseudonym Partos & Merritt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1985 of 2007

Mr Partos

Applicant

And

Ms Merritt

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 18 March 2011 Bell J made orders that included relevantly an order as follows:

   Save for order 2 of these orders, until further orders [Ms Merritt] or [Mr Partos] must not institute proceedings in this Court without first obtaining leave of the Court or a judge.

2. On 20 October 2011 the father filed an Application in a Case seeking leave pursuant to that order so as to file a contravention application.  The substance of that contravention application is multifaceted. 

3. The father alleges that the child the subject of the original parenting proceedings, C born in 2006, has not been made available by the mother for time with the father pursuant to parenting orders earlier made.  The mooted application also seeks to allege that other aspects of the parenting orders made have been contravened by the mother, including an order relating to the child’s surname. 

4. The totality of Bell J’s reasons in support of the order to which I have just referred are as follows:

   The application initiated by the mother has been withdrawn [his Honour there refers to an application by the mother for contravention] and I complement her upon doing that.  I think it is very sensible.  They have to comply with the orders, comply strictly with the orders.  The only application or applications remaining, as I understand, are on the part of the father, [Mr Partos], who is seeking too, (1) that the mother be declared a vexatious litigant pursuant to two provisions of section 118.  I have indicated to him that I would make an order in relation to both of the parties and I do so.  I consider that having had a look at the documents that are before this Court, the allegations, the counter-allegations, the fact that it has been going on for four years, it has got to stop and I will declare them both vexatious and that they are unable to institute proceedings in this Court in relation to the parenting arrangement of the child without leave of the Court or a judge.

5. On 15 April 2011 (that is to say, within time) the father filed a Notice of Appeal (NA27/2011) against the order to which I have earlier referred and to which the paragraph to which I have just referred are the only reasons. 

6. It is axiomatic that it is not for me to make any comment about what may or may not occur in that appeal. 

7. It seems apparent from such material as is before me, however, that in the proceedings before his Honour it was the father who had sought an order pursuant to section 118 as against the mother.  None of the material before me reveals that any application was ever made by the mother that an order be made as against the father pursuant to that section. 

8. Moreover, there is nothing in the reasons for judgment nor, again, in any material before me, that suggests that his Honour made it clear that he was purporting of his own motion to consider any such order as against the father. 

9. In a similar vein, there is nothing in his Honour’s reasons, nor in any of the material before me, to suggest that the father was ever given any opportunity to be heard in respect of any such proposed “application”.  Indeed, it is not immediately apparent to me that either party was given any opportunity to be heard in respect of either the father’s application, in the case of the mother, or any mooted “application” insofar as it might apply to the father.

10. I repeat that the paragraph I have quoted above is the totality of his Honour’s reasons with respect to the order that is made. 

11. Those matters are raised here because they seem to me to be directly relevant to the issue of whether I ought grant leave in relation to the order that was, in any event, made.  If there might be considered to be significant doubt about whether that order was to remain in force in the light of a prospective appeal, that, as it seems to me, is a relevant consideration with respect to the application for leave brought by the father today.

12. Having made those comments, I should also record that this matter has a long and tortuous history. 

13. C will turn six early in 2012.  For virtually the whole of his life, his parents have been in dispute in respective issues pertaining to him.  Parenting proceedings commenced, as the father himself says in his affidavit, some five years or so ago in the Federal Magistrates Court. 

14. In those proceedings, a family report by Ms D was received and so too a report from the psychiatrist Dr E.  Early in 2008, that is to say, almost four years ago, Baumann FM transferred the proceedings to this Court.

15. The father says in his affidavit in support of his application for leave, as to the most recent assertions made in respect of the child:

    I received from [the mother] via communication book and text message lengthy hearsay allegations and threats to cease access visits if I didn’t respond to her demands, much the same as the countless nonsense over the past five and a half years.

16. The father in that affidavit also refers to the fact that it was he who made an oral application before his Honour for the mother to be “named a vexatious litigant” after she withdrew an application partway through a hearing.  It seems that that oral application was the catalyst for the order made by his Honour to which I have just referred. 

17. The subsequent history of these proceedings have seen the matter initially listed in this Court’s Magellan list and a defended hearing take place on 29 through 31 October 2008, which resulted in parenting orders made by Bell J on 3 November 2008.

18. Within four months, the matter was back before the Court, this time before me on a Magellan directions hearing. 

19. At that time, there was before the Court the first of what was to prove to be a number of contravention applications.  The application for contravention was to be heard by Bell J on 8 May 2009. 

20. Subsequently, a further report was received from Dr E psychiatrist, the child’s treating psychiatrist Dr F (noting that at this time the child was aged approximately three) and a section 65L report by the family consultant Mr G.

21. On 20 August 2009 the matter again came before this Court, this time before O’Reilly J, in respect of a contravention application filed by the father in May of 2009.  Her Honour made orders.  Subsequently, costs applications by each of the parties were dealt with respectively by Bell J and O’Reilly J.  On 15 April 2010 a further defended hearing over two days occurred. 

22. On 21 April 2010 Bell J delivered his reserved judgment in respect of further parenting orders.  Those orders provided in broad terms that the child live with his mother, who should have sole parental responsibility for him, and that the father should spend time with the child each alternate weekend and a graduated process whereby ultimately half school holiday time would be spent with the father.  Other orders were made, for example, relating to telephone communication and changeover.

23. Within eight weeks of that order being made at a final hearing, an application was again made before Bell J for a variation of the changeover arrangements contained within those orders. 

24. Some six months later, the mother filed an initiating application for variation of the parenting orders on both an interim and final basis.  It is not necessary to go into the details of the orders sought in respect of that application.  Bell J ordered that the application be adjourned so as to permit the father to file material. 

25. In February of 2011 the mother filed an amended initiating application seeking variation of a number of parenting orders.  Some of those variations sought can be described accurately, as it seems to me, as relating to the minutiae of parenting orders, for example, which half of the school holidays the father should enjoy with the child, when time commenced after school holidays and the like. 

26. The father responded to the wife’s application and it was there that for the first time, I gather, that the father sought an order that the mother be “named as a vexatious litigant”. On 18 March 2011 his Honour made the orders to which I have previously referred. 

27. The sordid five-year history of parenting applications and cross-applications in this Court might, to any objective observer, be seen to have founded a considerable degree of frustration on the part of his Honour when the matter came before him yet again on 18 March. 

28. Nevertheless, I reiterate the concerns that I have respectfully expressed with respect to his Honour’s reasons, which, as I have said, I consider to be directly relevant to the application for leave currently before me.

29. The father’s application, which by reason of Bell J’s order is being heard before me today without it having yet been served upon the mother, details, as I have said, a number of alleged contraventions by the mother of orders that have been made. 

30. It relates to allegations that are made in respect of missed weekends until about August of this year.  But, in the three months since that time (most disturbingly, in light of the orders and the litigation history to which I have referred), the father alleges that he has not seen the child at all. 

31. In the circumstances just described, and particularly in light of the fact that the central allegation sought to be raised in the contravention application, occurs in the context of this lengthy and sordid history of litigation, but where, despite orders, he has not seen the child at all, it seems to me that I ought exercise my discretion to grant leave to the father to proceed with the contravention application filed by him on 20 October 2011.

32. I so order.

33. The Application in a Case filed by the father seeks a further order that the order contained in paragraph 3 of Bell Js reasons be stayed pending appeal. 

34. In light of the fact that leave has been granted pursuant to that paragraph so as to have the application for contravention heard and determined, I do not propose to deal with that aspect of the application.  It may be that that part of the application is redundant. 

35. To the extent that the father asserts that that part of the application is not redundant and that an order is, in any event, pursued, as indicated in that application, I direct that the hearing of that part of the Application in the Case relating to stay be heard and determined, if at all possible, at the same time as the application for contravention.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 28 October 2011.

Associate: 

Date:  7 November 2011