PEDRAD & PEDRAD

[2021] FCCA 80

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEDRAD & PEDRAD [2021] FCCA 80

Catchwords:
FAMILY LAW – Application for summary dismissal of the father’s parenting orders application – children 15 and 10 and half expressing adamantine opposition to any contact with the father – father’s submissions not engaging with the opposing submissions of Independent Children’s Lawyer and mother – father’s case having no reasonable prospect of success

Legislation:

Family Law Act 1975 (Cth), s.45A

Cases cited:

Spencer v The Commonwealth of Australia [2010] HCA 28

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

Applicant: MR PEDRAD

Respondent: MS PEDRAD

File Number: DGC 2304 of 2014

Judgment of: Judge Burchardt

Hearing date: 18 January 2021

Date of Last Submission: 18 January 2021

Delivered at: Dandenong

Delivered on: 20 January 2021

REPRESENTATION

Counsel for the Applicant: Self-Represented

Solicitors for the Applicant: Not applicable

Advocate for the Respondent: Ms Baraz

Solicitors for the Respondent: Pentana Stanton Lawyers

Counsel for the Independent Children's Lawyer: Mr Eidelson

Solicitors for the Independent Children's Lawyer: White Cleland Lawyers

ORDERS

1. All previous parenting orders be discharged.

2. The Mother have sole parental responsibility in relation to the children, X born 2006 and Y born 2010 (hereinafter referred to as “the children”).

3. The children live with the mother.

4. The children spend time and communicate with the Father according to their wishes and/or as otherwise agreed between the parties in writing.

5. The Mother and Father communicate with each other by email or text message about the children’s care and welfare only.

6. The Mother and Father notify each other of any changes to their contact details as soon as practicable.

7. The Mother be at liberty to enrol Y to attend School A in Suburb B, to commence his grade 5 learning in Term 1 of the new year of 2021.

8. The Mother and Father do all things as are necessary to ensure each of them can receive (at their own expense) copies of all newsletters, notices, photographs and other information provided by school.

9. The Mother notify the Father of any Serious Medical Injury, Serious Illness or Hospital Admission in respect of the children, as soon as practicable after it occurs. Further the Mother notify the Father (in writing) of any major medical decision made in respect of the children, as soon as practicable after such decision is made.

10. The Mother and Father be restrained by injunction from:

    (a)Denigrating each other within the hearing or presence of the children, either personally or through their servants or agents; and

    (b)Discussing any aspect of the Family Law Dispute between the      parties, within the hearing or presence of the children, either personally or through their servants or agents.

11. Pursuant to Section 45A of the Family Law Act 1975, the Applicant father’s Initiating Application be dismissed.

12. The order appointing the Independent Children’s Lawyer dated 9 July 2018 be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2304 of 2014

MR PEDRAD

Applicant

And

MS PEDRAD

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The application before the court is made by the Independent Children’s Lawyer and supported by the mother and seeks the summary dismissal of the father’s application pursuant to section 45A of the Family Law Act1975(Cth) (“Act”). This was foreshadowed in orders made on 19 August 2020 where it was ordered, amongst other things, that “the matter be adjourned to this Court for final hearing before Judge Burchardt on 18 January 2021 at 10.00 am, with an estimated hearing time of 1 day to consider whether the Father’s application should be dismissed pursuant to section 45A of the Family Law Act 1975 (Cth).”

2. It should be noted that the father was legally represented at that time, and despite his complaints about his representation made in recent affidavit material and submissions on Monday, it is clear that the father has had sufficient notice of the section 45A application. Section 45A relevantly reads:

   The court may make a decree for one party against another in relation to the whole or any part of 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 defending the proceedings or that part of the proceedings. 

   That’s subsection (1).  Subsection (2): 

   The court may make a decree for one party against another in relation to the whole or any part of a proceedings if: 

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

   (b)    the court is satisfied that the other party has no reasonable prospects of successfully prosecuting the proceedings or that part of the proceedings. 

   Subsection (3): 

   For the purposes of this section, the defence of proceedings or part of proceedings need not be: 

   (a)    hopeless;  or

   (b)    bound to fail, to have no reasonable prospects of success.

   Clearly, in this instance, the application is pressed pursuant to subsection (2). 

3. There is a welter of authority - that is to say, legal case law - on the question of what is meant by those words, and I do not propose to read out the authorities in full as they are technical in nature and likely, perhaps, to be confusing to the self-represented father.  However, in Spencer v The Commonwealth of Australia [2010] HCA 28, French CJ and Gummow J said at [25]:

   Section 31A(2)

   - and that was of the Federal Court Act which is in identical terms -

   requires a practical judgment by the Federal Court as to whether the applicant has more than a fanciful prospect of success. 

   The plurality of Hayne, Crennan, Kiefel and Bell JJ dealt with the matter at [50] - [60], which I do not propose to read out in full, although I have regard to the entirety of that passage.  I will read [58], [59] and [60] which are in the following terms: 

   How then should the expression “no reasonable prospect” be understood?  No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content.  Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”.  The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided.  Consideration of the difficulties that bedevilled the proviso to common form criminal appear statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.

   In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”.  But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by  s 31A.  Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim. 

   Rather, full weight must be given to the expression as a whole.  The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success.      

4. The matter was also authoritatively considered in the case of Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60. At [45], Rares J gave his view of the matter which I refer to by reference but will not read out, and Gordon J gave her views at [123] - [134]. Once again, I have regard to all those matters but do not propose to read them out. But at [132], her Honour said this:

   I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party.   

   I omit reference to authority.

   I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear.  By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.    

5. The parties made oral submissions before me on Monday, which I propose to paraphrase from my notes.  Mr Eidelson, of counsel for the Independent Children’s Lawyer, pressed for summary dismissal.  He pointed to the listing of the matter to which I have already referred. 

6. There are two children under 18 and two children over 18. X was born 2006 and is 15, and Y was born 2010 and is 10 and a half.  An older sister, Ms C Pedrad, is 25 and another older sister, Ms D Pedrad, who is 22, live independently.  The two younger children live with the mother and have spent no time with the father since January 2018. 

7. The father’s initiating application was filed on 27 April 2018 and he was represented until his solicitors withdrew on 20 October 2020.  The father has had three months to obtain a new lawyer. 

8. The family report corroborates the history alleged by the mother, and all children had no interest in seeing the father.  X has very strong views about the family violence history and wants no time with her father.  Her wishes should be respected.  Y stated to Ms H that he was very strongly opposed to seeing his father and fearful of him.  Y was resistant throughout the parenting orders program and the family contact centre and refused to leave the car.  He then refused to leave the support worker on the occasions that he was able to be cajoled out of the car. 

9. The father was controlling and violent before separation in May 2013.  An intervention order then taken up has expired.  The mother took out another intervention order in 2018 which she withdrew, but made plain she still believed in, so to speak.  The father’s affidavit makes very serious allegations against the mother.  There is mental health difficulty alleged and alleged abusive behaviour by her.  The application has been on foot since 2018 and the father had a lawyer until October 2020. 

10. The children’s views have been very clearly expressed.  It was submitted that Y is beyond mere words, but his position could be described as primal.  The older sisters have expressed real concerns about their younger brother spending time with the father.  There has been no time for three years and the children’s views are unchanged.  The father has failed to move the situation forward.  That is the unfortunate reality.  History has overtaken the matter.  The children need a break from the conflict of their parents. 

11. The father had filed no material until late on Friday, notwithstanding that he had spoken to Mr Eidelson on Friday morning.  The matter could not proceed therefore in any event.  Counsel asked rhetorically, “Why should the court adjourn?  It will change nothing.”  Everything shows an ingrained dispute.  There has been no application for a change of primary care.  The best interests of the children do not compel their spending time with the father.  There should be orders in the terms sought by the mother.  Those orders do not completely close the door.  Sole parental responsibility was unavoidable in these circumstances.

12. Ms Baraz, for the mother, noted the father did start his application in 2018 and sought time with the children, albeit not clearly specified.  He has not amended his position formally since.  The mother’s response on 13 June 2018 sought sole parental responsibility, supervised time and an 11F conference.  Her material suggested extensive abuse in the 23-year relationship.  It commenced in 1992 in Country E.  The parties lived for nine years in Country F and came to Australia in 2004.  WAYSS has assisted the mother following separation in May 2013.  There had been sporadic time thereafter in the presence of the two elder children, until January 2018, when the two elder daughters refused to continue, allegedly because of anger and yelling by the father.  Then there has been no time and the children have always been afraid. 

13. The 11F conferences took place on 19 November 2018 and the children’s views were clear.  That conference recommended time once per month.  Orders were made for time every three weeks.  The mother had always encouraged time, but could not force the children.  In the end, the children were so stressed that all endeavours stopped, and there was a parenting orders program referral.  X refused.  The parenting orders program tried three times to make Y see his father, but unsuccessfully.  The mother has been seeking the children’s wishes, but cannot compel them.  She sought summary dismissal. 

14. The father, who initially addressed the court through an interpreter, but more latterly spoke fluently in English, was courteous in his opening and appreciative of the court’s time.  He had always complied with the court’s directions.  He had provided his material to Ms McGregor, but they failed to provide it to the other parties and provided his latest certificate to his lawyer and also his parenting orders program certificate.  He provided the document in February 2020.  He completed the FDRC program in March.  The ICL had told him not to do the men’s behaviour change course, but he did do it anyway.  He was registered with Family Life to do a change program, but COVID made this impossible. 

15. There was a hearing in August 2020.  At that time, the court advised the lawyers to be there, but they did not attend.  They sent an email saying that there was a court date on that date.  Mr Jackson, the barrister who appeared for him, knew nothing about him.  He has provided all information to his solicitor.  The solicitor had not provided it to the court and had withdrawn.  Because of the lockdown, solicitors’ offices are closed and it was impossible to find another one. 

16. He applied for Legal Aid.  It was impossible to find a solicitor and he is not eligible for Legal Aid.  He prepared and filed his affidavit himself.  His evidence has showed that he had done all the programs required of him.  He had two sessions left in the behaviour course.  He had attended the family report.  He apologised for the delay in filing his affidavit.  He traversed the earlier intervention order proceedings.  There had been an intervention order without admission.  He would prove that the mother was lying and was abusive and controlling.  She withdrew his salary with a forged signature, as I understood him to say, from G Bank.  Sometimes he does not have enough money even for rental, petrol.  She had applied for an intervention order in 2018 to stop his children from seeing him.  There was clear evidence she had lied in her intervention order application and had not mentioned the Family Court order.  His documents show her lying, controlling and abusive behaviour, and also her mental health problems.  He referred to a colour photograph of his engagement and marriage which disproved the wife’s assertion that she had not met him before the marriage.  She had seen him before their wedding. The police report said there was no violence and no children involved.  He then went on to oppose the mother’s application for Y to oppose School A and sought a public school. 

17. It is fair to say, I think, that the father’s responding submissions said but little about the underlying merits beyond his generalised assertions of misconduct on the mother’s part, and I would have to describe much of what he had to say as not only entirely critical of the mother, but somewhat unrestrained. 

18. The points I take from these materials are as follows.  First, the father’s submissions are almost entirely complaints about his legal representatives or making serious allegations against the mother.  He says she was lying, controlling and subject to significant mental health difficulties.  His submissions scarcely engaged, if indeed at all, with the submissions of the independent children’s lawyer.  Second, it is clear that X, who is now 15, is adamantly opposed to spending any time with the father herself, as expressed in the 11F and in the family report, the latter of which itself is now some two years ago.  X also reports an actual memory of assaults by the father on the mother.  X is concerned for Y spending time with the father,  and it is reasonable to suppose that as his elder sister she might well have influence on him whether she intends to or not. 

19. Third, it is clear that Y is scared of the father.  Fourth, it is clear that the elder children will not supervise.  Fifth, it is clear that beyond doubt that the dynamic between the father and mother is terrible.  The father’s submissions really were something of a vent.  Even if the father is correct that it was the mother who was controlling and violent, albeit that the children’s disclosures point the other way, and even if the mother is mentally unwell - and there is no medical evidence to suggest any current problems - and even if I put aside the fact that there is no application for a change of residence, the Independent Children’s Lawyer is clearly correct.  It is clearly inappropriate to allow this matter to continue. 

20. The father has no reasonable prospects of the success.  The children’s views are clear and they represent irreducible facts on the ground.  There has been no time for three years.  Mr Eidelson is correct to say that the children need to be spared the adult conflict.  In the face of the children’s age and expressed views, and the history they describe, it is immediately apparent that the father has no reasonable prospects of success in his application. 

21. That being so, sole parental responsibility simply has to be awarded to the mother, as the Independent Children’s Lawyer correctly submits.  So far as any time regime is concerned, the mother is still leaving the door open.  I agree with the Independent Children’s Lawyer’s submission that that is generous in the circumstances. 

22. There will be orders as sought by the mother.  The school clearly must be her choice.  The father’s submissions on this matter were not child-focused.  Y should go to the school that his sister already attends.

23. And I would discharge the Independent Children’s Lawyer.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 22 January 2021