Pedrana and Roberts

[2018] FamCA 642

FAMILY COURT OF AUSTRALIA

PEDRANA & ROBERTS [2018] FamCA 642

FAMILY LAW – PRACTICE AND PROCEDURE – where the parties have been engaged in litigation since 2011 – where the respondent wife seeks that the husband’s initiating application be struck out – where the wife’s application is supported by the Independent Children’s Lawyer – where the husband has failed to comply with trial directions for him to file documents – where the husband was previously granted an extension of time to file documents in compliance with the orders– where the husband did not comply with the new trial directions – where the husband submitted he did not comply with orders due to personal matters – where previously significant and serious findings were made against the husband – where previous orders require the husband to demonstrate a significant change and improvement in his anger management skills before there could be any serious consideration to a change of the current parenting arrangements for the child – where the wife and Independent Children’s Lawyer submit there has been little change in the husband’s behaviour – order that the husband’s initiating application be struck out.

Family Law Act 1975 (Cth)

APPLICANT: Mr N Pedrana

RESPONDENT: Ms Roberts

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 1231 of 2011

DATE DELIVERED: 1 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 1 February 2018

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Nicholson

SOLICITOR FOR THE RESPONDENT: Lilley Dawson

SOLICITOR APPEARING FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Piekarski

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That the husband’s Further Amended Initiating Application filed 14 July 2017 be struck out.

2. That the mention hearing listed before Johns J on 14 March 2018 be vacated.

3. That the appointment of the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1231 of 2011

Mr N Pedrana

Applicant

And

Ms Roberts

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. By Application in a Case filed 15 December 2017, the wife, Ms Roberts, who is the respondent in the substantive proceedings, seeks an order that the husband’s Initiating Application originally filed 4 August 2014 be struck out.  That application is supported by an affidavit of the wife’s lawyer, Ms Dawson, filed 15 December 2017.  The application of the wife is supported by the Independent Children's Lawyer (the “ICL”). 

BACKGROUND

1. The background to the proceedings is as follows. 

2. The husband is Mr N Pedrana, aged 39 years. 

3. The wife is Ms Roberts, aged 37 years old.  She is employed as a health professional. 

4. The parties commenced cohabitation in February 2005 and married in 2010.  Separation occurred in February 2011. 

5. There is one child of the relationship, M (the child), who was born in 2009 and is aged eight and a half years. 

6. Following the parties’ separation, proceedings as to both financial and parenting matters were conducted in this Court. 

7. Those proceedings culminated in a seven-day defended hearing before Cronin J.  Final orders were made by Cronin J on 9 April 2013.  Those orders provide that:

   1.That the wife have sole parental responsibility for the child M born … 2009.

   2.That the child live with the wife.

   3.That the wife advise the husband of all decisions of a major long-term nature she makes concerning the child as soon as any such decision shall be made provided always that the husband provide to the wife an email address at which he can be reached and she respond to that email address.

   4.That the husband spend time with the child on one Saturday in each fortnight from 10 am to 4 pm provided that all such time is supervised by a person (as distinct from a commercial organisation) or a contact centre agreed between the parties (or appointed pursuant to the orders contemplated in paragraph 5) on the proviso that such agreed person (but not the contact centre) provides to the wife an undertaking in writing that acknowledges having:

   (a)read the relevant paragraphs relating to parenting issues between the husband and wife and which paragraphs shall be provided to that person by the Independent Children’s Lawyer;

   (b)read these orders;

   (c)agreed that, having undertaken the supervisory role, a failure to ensure the proper supervision of the child may amount to a contempt of this Court.

8. Cronin J made a number of significant findings in his reasons for judgment, dated 9 April 2013, including that:-

   ·the wife perceived the husband to be a threat to her physical and emotional safety; 

   ·that the husband had been violent towards the wife, giving rise to a reasonable fear on her part for her safety; 

   ·that the husband is an unacceptable role model for the child; 

   ·that the husband was aggressive and combative in his dealings with the wife and would not be troubled about what he did or said in the presence of the child; 

   ·that the husband’s time should be supervised indefinitely and it would not be wise to have the husband unsupervised around the child; 

   ·that the husband had acknowledged to Dr E, psychiatrist, that he was unclear as to how he could unlearn his violent behaviour; and

   ·that the husband at the time of the hearing had no insight, will or commitment to solve his problems and, in the absence of such, attending a psychologist would be a waste of time. 

9. His Honour found that any time the husband was to spend with the child was to occur in the context of the husband having ongoing psychiatric and psychological counselling.  He noted that the husband had threatened murder-suicide in respect to himself and the child and threatened to stab police if they attempted to intervene.  His Honour found that the wife’s case was not based on lies or her manipulation of the court system as was asserted by the husband. 

10. The husband has not spent any time with the child since the orders of 9 April 2013. 

11. In August of 2014, the husband filed an Initiating Application in which he sought orders that the parties have joint parental responsibility for the child;  that the husband have time with the child from 5pm Friday until 5pm Sunday each alternate weekend as well as specified school holiday time.  That application was opposed by the wife.  Those applications came before Cronin J on 2 April 2015. 

12. That day, orders were made which provide as follows:-

    ·that the father’s amended application for substantive relief, filed 26 February 2015 and the mother’s response thereto filed 14 October 2014 as amended on 1 December 2014 and 26 March 2015 are adjourned to a date to be fixed for final hearing before a judge, but that such application not be listed unless the following conditions are fulfilled: 

    (a)The father files and serves on all other parties a comprehensive psychiatric report attached to an affidavit confirming that all issues as set out in the reasons for judgment dated 9 April 2013 relating to his anger management have been addressed such that it would be appropriate for him to have any care of the child; and

    (b)Evidence by affidavit of an expert child psychologist to be nominated by the Independent Children’s Lawyer after reading the reasons for judgment this day, and those of 19 April 2013 as to how any reintroduction program should be undertaken relating to the father’s relationship with the child; and

    (c)Any other evidence that the father considers indicates that he is ready to have the matter heard for final hearing if, after consultation with the legal practitioners for the mother, there is no consensus that the matter is ready for trial. 

13. In June 2017, the matter was allocated to my docket and I made orders in chambers listing the matter for first day hearing before me on 18 August 2017.  Orders were made for the parties to file amended applications and responses as well as a brief summary of issues.  Those orders were complied with by the parties. 

14. At the first day hearing before me on 18 August 2017, both the husband and the wife were represented by counsel, as was the Independent Children’s Lawyer. 

15. That day, I made orders listing the matter for mention before me on 5 March 2018.  At paragraph 2 of those orders, I required that the applicant husband file and serve upon all other parties by 22 September 2017 the affidavits of evidence-in-chief of all witnesses, including the applicant, relied upon save in respect of the affidavit of his treating psychiatrist, Dr HH, which was to be filed and served by 15 December 2017.

16. Further orders were made for the wife to file affidavits in response, those affidavits to be filed by 20 October 2017.  The husband was afforded the opportunity to file an affidavit in reply to those affidavits by 3 November 2017. 

17. The husband did not comply with my orders of 18 August 2017.  He has filed no documents in compliance with those orders.  As a result of the husband’s non-compliance, the matter was listed before me on 20 October 2017.  That day, the husband appeared in person and the wife and the Independent Children’s Lawyer were represented by counsel. 

18. Based upon the submissions made by the husband that he intended to pursue his application and file the material as ordered, I made further orders extending his time for compliance with my orders of 18 August 2017.  The time for the husband’s compliance with order 2 of the August 2017 orders was extended to 4pm on 10 November 2017.  I also extended time for the respondent’s compliance with order 3 of the August 2017 orders, she to file her affidavits in response by 4pm on 1 December 2017, and, further, that the applicant’s time for compliance with order 4 of the August 2017 orders that he have opportunity to file an affidavit in reply was extended to 4pm on 15 December 2017. 

19. Notwithstanding the indulgence granted to the applicant that time be extended for the filing of his affidavit material, he has filed no affidavit material in compliance with my orders of 20 October 2017.  Given that circumstance, the wife seeks orders that the husband’s Initiating Application be struck out. 

THE WIFE’S POSITION

1. The affidavit of the wife’s lawyer sets out the chronology insofar as the orders made by me setting a timetable for filing and service of affidavits of witnesses.  That affidavit confirms that the husband has failed to comply with the orders of August 2017 and October 2017. 

2. At paragraph 7 of her affidavit, Ms Dawson deposes that the husband forwarded to her offices by email on 20 November 2017 an email purporting to annex his affidavit and affidavits of witnesses relied upon by him.  Ms Dawson deposes that no such affidavits were annexed to that email.  She deposes that she replied to that email informing the husband that the documents purported to have been sent in his email had not been received. 

3. At paragraph 8 of her affidavit, she deposes that the Independent Children’s Lawyer similarly forwarded an email to the husband informing him that the affidavits he purported to have sent to him had not been received, and a request was made that the husband resend or provide hard copies of those documents.  Ms Dawson deposes that on 28 November 2017 she received a further email from the husband which annexed what purports to be an unsworn affidavit from him. 

4. At paragraph 11 of her affidavit, Ms Dawson deposes that as at the date of filing her affidavit no affidavits have been filed for or on behalf of the husband and he remains in default of my orders.  As a result of the husband’s failure to comply with orders of the Court, the scheduled appointments for the parties to attend upon Dr E have been cancelled.  Further appointments have now been rescheduled for next week. 

5. It is submitted on behalf of the wife that in circumstances where the husband is the applicant, where he has failed to comply with orders for him to file documents and further failed to comply with orders extending time for the filing of those documents, his application should be struck out.  It was submitted on behalf of the wife that she has been engaged in ongoing litigation with the husband since 2011.  To date, she has expended in excess of $90,000 on counsel’s fees alone.  She otherwise relies upon the findings made by Cronin J in his reasons for judgment, dated 9 April 2013, to which I have earlier referred. 

6. As I have already noted, his Honour there made significant and serious findings against the husband.  The orders of Cronin J made in April 2015 highlight the concerns of Cronin J as to the need for the husband to demonstrate significant change and improvement in his anger management skills before there could be any serious consideration to a change of the current parenting arrangements for the child. 

THE ICL’S POSITION

1. It was submitted by the ICL that as a result of information received in November 2017, the ICL caused a subpoena to issue to the Victoria Police in respect of the husband’s recent criminal history. 

2. Both the wife and the ICL rely upon that criminal history to support their submission that there has been little change in the husband’s behaviour which would warrant a continuation of these proceedings at this time.  The criminal history record for the husband, which is Exhibit W1, discloses that as recently as December 2017 the husband was charged with four counts of unlawful assault and four counts of recklessly causing injury. 

3. The husband faced similar charges in October 2016 and, further, was charged with contravening a family violence order in December 2016.  Further, the husband’s former partner, Ms GG, was granted a family violence order for a period of five years in December 2017. 

4. Notwithstanding my trial directions, none of this material has been put before the Court by the husband.  It was submitted by the ICL that the onus was on the husband to take action in order to progress these proceedings.  That is clear from the orders made by Cronin J on 2 April 2015 and by my trial directions of August and October 2017. 

5. The husband has failed to comply with those orders and, in those circumstances, it was submitted by the ICL that the matter should not proceed.  The ICL submitted that he has had no communication with the husband since late November 2017 nor had the husband communicated with Dr E’s rooms. 

THE HUSBAND’S POSITION

1. The husband arrived at court today at approximately 10.40am, that being almost 40 minutes after the hearing had commenced.  He was called prior to the commencement of submissions at 10.00am and did not answer that call.  The husband offered no excuse for his late arrival. 

2. The matter was stood down to enable him to attend upon the duty lawyer for advice with respect to the application before the Court this day.  Unfortunately, due to a conflict, the duty lawyer has not been able to provide any advice to the husband with respect to the application before the Court.  The husband has had a period of approximately an hour and a half today to consider his position with respect to the application of the wife. 

3. Indeed, he has had ample opportunity to obtain independent legal advice in relation to the application, he having been served with the wife’s application in a case on 18 December 2017. 

4. The submissions of the husband opposing the wife’s application are to the effect that due to “personal matters” which have arisen in the latter part of last year, he has been unable to comply with my orders.  Further, he has indicated to the Court that he has been unable to raise sufficient funds to obtain representation.  He submitted that he is not emotionally “in a good spot” presently and not in a position to write something. 

5. He stated to the Court that he did not have anything to give or do at this time.  Significantly, the husband has not presented at Court today with any documents which would purport to be documents that could have been filed in compliance with previous orders. 

CONCLUSION

1. The most recent affidavit as to the husband’s position is that of his treating psychiatrist, Dr HH, which was an affidavit filed on 28 October 2016.  That affidavit does little to advance the matter.  In his report, dated 21 October 2016, which is exhibit RK2 to the affidavit of Dr HH, he reports as follows:

   …it is unclear whether [the husband] at this point in time, has met all the demands and requirements set out in the Reasons of Judgment that you referred to in correspondence in the way of Court Orders.  [the husband] is currently undergoing psychotherapy with myself monthly thereabouts and I am unclear as to how much progress he has made, at this point in time, in addressing the personality issues and anger management difficulties that he has encountered to this point in time which have been alluded to and discussed in reports which you have to hand. 

   Additionally, as I have previously opined, I unable to determine whether or not your client should have contact with his son, the child. 

2. There is no evidence before the Court of any further attendances by the husband on Dr HH nor is there any evidence as to Dr HH’s opinion as to the husband’s progress since that report.  Having regard to the history of the proceedings and particularly the orders of Cronin J dated 2 April 2015 (requiring the husband to produce evidence that he has addressed his anger management issues) and my trial direction which have not been complied with, I am satisfied that there is no utility in allowing these proceedings to continue.  The wife and the child have endured ongoing litigation since 2011.  The parties have had a seven-day defended hearing before Cronin J in 2013.  A little over a year after final orders were made, the husband initiated these proceedings. 

3. The matter has been in my docket since June 2017.  I have made trial directions on two occasions in August 2017 and October 2017 in an endeavour to advance the matter.  The husband has failed to comply with my trial directions.  The wife has incurred significant expense in participating in these proceedings.  She has filed documents in compliance with my directions and has incurred the cost of having counsel appear at the hearings before me in August and October 2017 as well as this day.  In the circumstances, I propose to accede to the wife’s application, that the husband’s Initiating Application be struck out.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 February 2018.

Associate: 

Date:  1 February 2018