Pearce & Gough

[2008] FamCA 485

FAMILY COURT OF AUSTRALIA

PEARCE & GOUGH [2008] FamCA 485

FAMILY LAW – CHILDREN – with whom a child spends time – history of violence and mental health issues on the part of the father – no order in place for the father to spend time with the child.

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal or Striking Out - numerous adjournments of trial to allow father to prepare his case and address his difficulties – during period of last adjournment father arrested, charged and sentenced to period of imprisonment – father has not prepared his case nor begun to address his difficulties – father seeking further adjournment - mother seeking summary dismissal of the father’s application –prima facie justifiable case to dismiss father’s application – discussion of effect of summary dismissal on father’s case - father has a cause of action but is unable to proceed as he has not presented the necessary evidence to the court to enable his application to be determined – matter not strictly an application seeking summary dismissal as identified in authorities of Lindon v Commonwealth (No. 2) (1996) 70 ALJR 541 and Bigg & Suzi (1998) FLC 92-799 – Family Law Rules 2004 r 10.12 applied - father’s application summarily dismissed – adjourned to consider mother’s response.

FAMILY LAW – CHILDREN – oral application by father to telephone the child on his birthday and to send letters and gifts to the child – due to dismissal of father’s application not open for the father to pursue these applications – no orders for father to spend time or communicate with child – no expert evidence as to appropriateness of sending gifts and letters – due to circumstances of the case order not in the best interests of the child.

Family Law Act1975 (Cth)
Family Law Rules2004 (Cth) r 10.12(d)

Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541
Bigg & Suzi (1998) FLC 92-799

APPLICANT: MR PEARCE

RESPONDENT: MS GOUGH

OTHER PARTIES: MR AND MRS PEARCE (SNR)

FILE NUMBER: ADF 1477 of 2005

DATE DELIVERED: 22 April 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 22 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Pickhaver

SOLICITOR FOR THE APPLICANT: Pappas J Attorney

COUNSEL FOR THE RESPONDENT: Mr J Hicks

SOLICITOR FOR THE RESPONDENT: Alderman Redman

COUNSEL FOR THE OTHER PARTIES: Ms S Roenfeldt

SOLICITOR FOR THE OTHER PARTIES: Withnalls

Orders

1. That the Amended Application filed by the father on 3 August 2007 be dismissed and removed from the active pending cases list.

2. That the Further Amended Response filed by the mother on 2 October 2007 be adjourned to 9:30am on 6 June 2008.

3. That paragraph 1 of the Application in a Case filed by the mother on 10 April 2008 be dismissed.

4. That paragraphs 2 and 3 of the Application in a Case filed by the mother on 10 April 2008 be adjourned to 9:30am on 6 June 2008.

5. That the Application in a Case filed by the paternal grandparents on 10 April 2008 be adjourned to 9:15am on 26 June 2008.

6. That the oral application of the father seeking an order that the child telephone him on his birthday be dismissed.

7. That the oral application of the father seeking an order that he be permitted to send letters and gifts to the child via the post office box of the mother be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pearce and Gough is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1477 of 2005

MR PEARCE

Applicant

And

MS GOUGH

Respondent

EX TEMPORE REASONS

1. I have before me an Application in a Case filed by the mother on 10 April 2008, in which the mother seeks, inter alia, that the father's application, initially dated 29 October 2004, then amended on 24 February 2005 and then further amended on 23 August 2007, be summarily dismissed pursuant to Rule 10.12(d) of the Family Law Rules 2004.  That application is opposed by the father, and the father seeks, and this is in his response filed on 21 April 2008, that the application of the mother be dismissed and the matter be adjourned to a date in late July 2008.

2. This is a case which first came before me in December 2007 for hearing as a trial.  However, in the end result the trial did not proceed and the case was adjourned.  I delivered reasons for judgment in making an order for the trial to be adjourned, and in summary the reason for the trial not proceeding and the matter being adjourned was that the father was not in a position to proceed with the trial given that he had not presented any sufficient evidence to the court, by way of affidavit or otherwise, to enable his application to proceed.

3. This is a matter that originally commenced in the Federal Magistrates Court and was ultimately transferred to this Court.  The subject of the proceedings is a very young child who was born in January 2002. Both before the proceedings commenced and during the court proceedings, there has been an unfortunate history of violence and mental health issues on the part of the father, such that there is no order in place for him to spend time with the child and, indeed, I think I am right in recalling that he had not seen the child since sometime in 2003.

4. That history is well recorded in the affidavit of the mother, filed on 2 October 2007, which was before me for the purposes of the trial, and also in two expert reports that were also before me, namely, one from Ms H of OA Psychology dated 2 March 2006 and the second one from Ms C of OA Psychology dated 14 March 2007.

5. At the time of the trial, the father was residing in Canberra, the mother and child were living in Adelaide. 

6. The evidence that the father was relying on for the purposes of the trial in December 2007 was two affidavits filed by him on 8 November 2006 and 22 September 2007.  He also relied on the report of Ms C to which I have just referred.

7. When one looks at those two affidavits, it immediately becomes obvious that they are insufficient for the purposes of a trial of the issues which are the subject of the application of the father and, indeed, the response of the mother.  There was no all‑embracing, all‑encompassing affidavit of evidence in chief filed by the father in support of his application and for the purposes of the trial.

8. That is to be compared with the mother's position.  She was ready to proceed.  She filed an extensive affidavit of evidence in chief which she was relying on, and she was relying on the two expert reports.

9. Given the state of the father's case, his counsel readily conceded that the father was not able to proceed at that time and sought an adjournment of the trial.  In the end result I granted that application and adjourned the matter to 1 February 2008.

10. The mother, although not consenting to the adjournment, in effect did not oppose it, on the basis of the matter being able to be re-listed relatively quickly once the father had an opportunity to not only present the evidence that was required, but to also address issues that were raised in the two reports of Ms H and Ms C which he, to that point in time, had not attended to.  For example, in the report of Ms C, which is the more recent of the two reports, her recommendation was that the father needed to undertake counselling before it was appropriate to re‑introduce the child to him, and there were recommendations made by Ms C on the basis that the father undertook the counselling or therapy referred to.  Indeed, there had been an order that the father undertake such counselling, and that was an order made on 28 April 2006 by Registrar Kelly, as follows:

    That the father do obtain and undertake therapeutic counselling in relation to his emotional reactivity and management of that reactivity and do provide any counsellor providing such therapy with a copy of the report of Ms [H], [OA] Psychology, dated 2.3.06.

    That was an order that obviously followed the report of Ms H, and it was that therapeutic counselling which the father had not undertaken to the point of the commencement of the trial which he needed to address.  It was that counselling also that was raised and referred to by Ms C in her subsequent report.

11. I note that the mother was also required by Registrar Kelly to undertake therapeutic counselling in relation to her anxiety concerning the possibility of contact between the child and the father.  The mother though had addressed that issue, and there was a report annexed to her affidavit of evidence in chief detailing the counselling that she had undertaken.

12. However, the mother conceded through her counsel that she had not completed that process, and it was for that reason that I made a further order on 5 December 2007 requiring the mother to continue that therapy.

13. The focus has always been, and continues to be, on the father and his difficulties and his need to address those difficulties appropriately before serious consideration can be given to him spending time with the child.  Thus, apart from the lack of evidence in a general sense from the father, he has not addressed this issue of therapeutic counselling such that, to repeat, serious consideration can be given to his application.  That was candidly recognised by his counsel Mr Pickhaver on 5 December 2007 and led to the successful application to adjourn.

14. What was intended was that in the adjourned period, the father would with the input of his solicitor, ascertain the availability of the necessary therapeutic counselling, if possible commence that counselling, address the issue of the lack of evidence in support of his application and on the adjourned date be in a position to inform the court that the case could then be re-listed for trial.

15. However, instead of taking that on board and addressing those issues to ensure that this case could proceed expeditiously, the father breached an existing order and attended at the Canberra Registry of the Family Court and conducted himself in such a way that he was arrested and charged and ultimately sentenced to a period of imprisonment.

16. It was on 29 February 2008 when his counsel read onto the transcript some information that he had obtained through his instructing solicitor as to those events.  I will not repeat all that his counsel relayed to me, but in summary the father attended at the Canberra Registry of the Family Court in December 2007, thus not long after the trial was adjourned in this court, and by attending he breached what is described as a workplace order.  He yelled and screamed at the court in frustration over this case involving his daughter.  He called the court staff “rock spiders” and generally yelled abuse in the direction of the court.

17. As a result of his actions, to repeat, he was arrested and charged and then ultimately in or about early March 2008 he was sentenced to a term of imprisonment, which he is currently still serving.  As I recall, he is due to be released towards the end of May 2008.  He will then, though, be on probation for another six months or thereabouts.  Thus, instead of thinking of his own case and pursuing that appropriately and taking advantage of the adjournment that was granted to him, he chose to conduct himself in that way, which led to him being incarcerated.

18. The father has filed an affidavit in support of his application to adjourn these proceedings, wherein he refers to the adjournment of the trial on 5 December 2007 and to the fact that he was ordered to undertake therapeutic counselling in relation to his emotional reactivity and the management of that.  He says that on 18 December 2007 he received a letter from his solicitor advising that he needed to contact Dr S to obtain therapeutic counselling.  Thus the scenario was that, through the good offices of his solicitor, there had been a psychologist identified who was prepared and able, presumably, to provide the father with the relevant therapeutic counselling, but it was only two days later that he then conducted himself in the way that I have referred to and found himself remanded in custody, the subject of criminal charges.

19. He says, in effect, through his counsel that the fact that he has been in custody now since late December 2007, and continues in custody, has meant that he has not been able to comply with the orders that I made in adjourning this case on 5 December 2007, both in regard to undertaking the necessary therapeutic counselling but also, in filing a further affidavit of evidence in chief preparatory to this matter being re-listed as a trial.  Thus, that is his excuse.  He says, "I'm in gaol, I can't do anything.  Therefore, adjourn this case until I'm out of gaol, and then I can address these issues and we can come back again sometime after July 2008."

20. In the meantime, the mother, who was ready to proceed with the trial on 5 December 2007 and experienced the trial being adjourned to a date in February 2008, but anticipating that on that date the matter could be re-listed, is now faced with, if the father's application is successful, a further delay in finalising this matter, through no fault of her own.  More importantly, the child the subject of these proceedings, although I trust that she has not been apprised of these adult issues, must be wondering where her mother is and what is happening.  She may be aware that there are court proceedings going on, I do not know, but obviously I need to consider her interests in this, and for her future to be put on hold until the father decides that he should do what he is supposed to do is a very real consideration.  That is the effect of the father's conduct in this matter.

21. I should say that on 5 February 2008 the matter did come before this Court and, in the circumstances of the father being in custody and his criminal matter being dealt with within a short compass, I further adjourned the matter to 29 February 2008.  Unfortunately, on that date the magistrate who was dealing with the father in Canberra had not delivered his reasons and not sentenced the father.  That was then due to take place in early March, and I further adjourned the matter to 27 March to await the outcome of the criminal proceedings.  On that day I was told of the result, namely, the father being sentenced to a term of imprisonment.

22. The father through his counsel on that date made an application to the adjourn the proceedings, which was opposed, and I determined that the proceedings would not be adjourned and I set the matter down for hearing today in anticipation of the mother filing the application that she has now filed, namely, an application for summary dismissal.

23. Separate to that, there was an issue between the paternal grandparents and the mother, which I do not need to refer to for the purposes of these reasons.  That was also listed for today and has been disposed of by way of a consent order.

24. Mr Pickhaver for the father has conceded that the father's case is in no better shape today than it was in December 2007.  There is, of course, the further affidavit of the father, to which he has annexed a psychiatric report, and I accept that that report goes some way to explain the conduct of the father and provides a diagnosis of chronic post‑traumatic stress disorder.  In the report the psychiatrist who assessed the father says that there is a need for treatment of that disorder, but I do not understand that that has yet commenced.

25. The father's position is that he is in prison, due to be released on 20 May 2008.  There has been a psychiatric assessment and he has to deal with that and the necessary treatment referred to. He has not yet addressed the issue of therapeutic counselling and it seems he has not yet addressed the issue of the further evidence that is needed to provide any basis for him to successfully obtain the orders that he seeks in his application.

26. That brings me to the nub of this hearing, namely at this point in time there can be no doubt that, although the father has an application before this Court, on the evidence that is currently before the Court in support of that application, there is no reasonable likelihood of success, to use the phraseology in Rule 10.12(d). Thus prima facie there is a justifiable case to dismiss the father's application summarily pursuant to Rule 10.12(d).

27. The effect of that would be that for the father to pursue any orders of a similar nature to those that are currently before the Court, he would need to establish a change of circumstances within the principles of Rice & Asplund (1979) FLC 90-725.

28. Ironically, in his submissions on behalf of the mother, Mr Hicks has in effect suggested that if the father did set about addressing the issues that he should have addressed in the past - namely, therapeutic counselling, deal with the matters raised in the reports of Ms H and Ms C and file an affidavit of evidence in chief setting out his case in support of any further orders that he sought, all things being equal, he may be able to establish a change of circumstances.

29. Mr Hicks, of course, is not conceding that that would be the case necessarily, because the matter would have to be addressed at that time and an assessment made of whether the father has in fact attended to those matters, but it seems a not unreasonable comment to make that, if he has done all those things, he would be in a position to establish a relevant change of circumstances to enable him to proceed with a fresh application.  Although, as I say, Mr Hicks is not conceding that, that is the tenor of his submission, because what he is saying is that that fact should ameliorate what might be seen initially as a harsh result for the father if his application was dismissed now. 

30. Separate to that, the mother's response would still need to be dealt with, in the context of the father not having any application before the court but being able to oppose any of the orders sought by the mother.  I will need to set that matter down for a hearing and give the opportunity to the father to attend and to cross examine the mother if he wanted to.  That is a hearing which would need to take place at some time in the future.

31. The hearing today commenced on the basis of Mr Hicks addressing the issue of, and the relevant law surrounding applications for summary dismissal. However, in further discussion between bench and bar, Mr Hicks agreed that this application really was not strictly an application for summary dismissal, in the sense of how it has been dealt with in the authorities. Clearly he is relying on Rule 10.12(d), which says in so many words that a party may apply for summary orders if the party claims that there is no reasonable likelihood of success. That is a form of application for summary dismissal, but to my mind the prime circumstance of an application for summary dismissal arises out of, for example, an argument that there is no cause of action. That is not the case here. The father has filed an application, which he is able to do. He has a cause of action. The issue here is that he is not able to proceed with that because he has not presented the necessary evidence to the court to enable the court to determine his application. Allied to that, to repeat, because it needs to be always said in the same context, he has not addressed the issues that have been raised in the past that he needs to, namely, therapeutic counselling for him to deal with his emotional reactivity.

32. That said, I do not propose to treat this on the strict basis of it being an application seeking summary dismissal as is identified in authorities such as Lindon and the Commonwealth (No. 2) (1996) 70 ALJR 541 and Bigg and Suzi (1998) FLC 92-799. But that does not take away the force of the mother's argument, reliant upon Rule 10.12. All Rule 10.12 requires is that there is no reasonable likelihood of success, and that is to what this application is primarily, if not solely, addressed.

1. As I say, prima facie that is established here.  There is no reasonable likelihood of success on the basis of the evidence that is currently before the court.  That then highlights whether I should grant a further adjournment to the father to enable him to obtain and present the necessary evidence to enable him to proceed.

2. In the circumstances of this case, I do not consider it appropriate to grant the father a further adjournment.  He has had ample opportunity to properly present his case, not only prior to 5 December 2007 when the matter was set for trial, but since.  He had a solicitor representing him.  However, his affidavit material was inadequate, he had not addressed the issues which had arisen from the reports of the experts, and he had not complied with the order made in April 2006.  He was not ready to proceed.

3. I determined to adjourn the matter on 5 December 2007 to give the father what I recall I described as one last opportunity to provide the relevant evidence and to be able to pursue his application in this court.  He did not do that.  Instead, he went about and breached workplace orders which he well knew about.  He well knew the consequence of doing that, yet he chose to undertake that course rather than pursue this matter and undertake therapeutic counselling and gather the evidence that was required to pursue his application.

4. The father complains to me today about this Court and its procedures and how he has been battling for four years to try and see his child.  He should take a look in the mirror to realise what the problem is and not look to blame other persons and other organisations for his own failings and his inability to recognise what he needs to do to pursue an application, which may have been ultimately successful.  I do not know.  Why I do not know is because he has not presented the proper evidence before the Court.

5. It is all of his own making, and the sooner the father realises that and accepts responsibility for it, hopefully the better he will be able to address these issues. 

6. In making those comments, I am not suggesting that the father will necessarily be able to establish a change of circumstances.  That will have to be addressed at the time, if it does occur.

7. Thus, I propose to summarily dismiss the father's amended application.  Perhaps the only other comment I want to add is that of course I have primarily mentioned the father's position.  I touched upon the mother's position in this, and it is that she simply cannot be expected, to use the phrase of Mr Hicks, to be kept dangling on a string wondering when this matter might be ready to proceed, wondering when the father might finally decide to take some responsibility for his own actions and pursue this matter properly.

8. This court is not here for someone in the father's position to simply make an application and say, in effect, "look, when I'm ready and when I've got the evidence, then I will proceed.  In the meantime, you keep this matter alive."  That is not how the system operates.  This is one of the busiest courts in Australia.  It is suffering from lack of resources.  To have a matter remain in its list per se impacts upon the work of this court and the finalisation and determination of the many other applications that are before this court.

9. I next have to address the mother's response.  That, as I understand it, is being proceeded with and, as I also understand it from Mr Pickhaver, the father would wish to oppose some but not all of the orders sought by the mother.  For example, one order that he does not oppose is that the child live with the mother.  But Mr Pickhaver has indicated that, on his instructions, the father would oppose, for example, an order that the mother have sole parental responsibility.  There may be others, but I do not need to actually identify them or deal with them now.  All I need to deal with is that that response needs to be listed for hearing at an appropriate time, when evidence can be taken and cross examination undertaken.  I will address when I can do that now with both counsel.

10. I have now addressed with counsel when and on what basis this matter should come back before me, and it is agreed that, rather than try and list the mother's response on a date for hearing, there should be a directions hearing before that so that the husband's instructions can be taken and Mr Hicks, with his instructor, can determine whether there is any further evidence the mother wishes to present to the court.

11. During the course of the hearing today, the father made two oral applications.  Firstly, he sought an order that the child telephone him on his birthday, namely, … June 2008.  Secondly, that he be able to send letters and gifts to the child via the post office box currently being arranged by the mother.  Both of those applications were opposed by the mother.

12. In relation to the first application, in the context firstly of the dismissal of the father's application, there will be no final orders application by him before this court and thus it is not open for the father to pursue this application, or indeed any application.  However, that said, given the state of this case and given the father not having seen the child since 2003 and given that there is still to be a hearing in relation to the mother's response and the orders that she seeks, it is, in my view, simply not in the best interests of this child to embark upon an arrangement where the child telephones the father, and I have no hesitation in dismissing that application for those reasons.

13. In relation to the other application, obviously my comments in relation to there being no longer any final orders application before the court mean that that application has to be dismissed as well.  But separate to that, again in the context of this case, there being no order that the father is able to spend time with or communicate with the child and there being no expert evidence before me to indicate the appropriateness or otherwise of that, I do not consider that such an order would be in the best interests of the child.

14. I note, of course, that Ms C did say something about this in her report and particularly in her recommendations to which I have been referred by Mr Pickhaver.  The penultimate recommendation was as follows:

    “That in the meantime [the father] send child-focused letters and, when appropriate (eg Easter, birthday) gifts.  It is the writer's opinion that he will need assistance with this given his lack of experience with children and [this child] in particular.  This may be able to be incorporated as one aspect of the counselling he is engaged in.  Additionally, [the father] is likely to benefit from attending a parenting course specifically for parents with children of [this child’s] age, in order to further educate himself in this regard.”

15. However, I read that as a heavily qualified recommendation by Ms C.  It is not a recommendation that the father now launch into sending letters and gifts.  It is in the context of the father engaging in appropriate counselling, which he has not done.  Therefore I dismiss that oral application.

I certify that the preceding 47 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 22 April 2008.

Associate