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Pedrana& Roberts (No 2)

Pedrana& Roberts (No 2)

Case [2015] FamCA 231 2 April 2015

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FAMILY COURT OF AUSTRALIA

PEDRANA& ROBERTS (NO 2)

[2015] FamCA 231

FAMILY LAW – Application by father to nominate a supervisor some two years after the conclusion of a trail where he was permitted supervised time but no agreement has subsequently been able to be reached in relation to the supervisor – Independent Children’s Lawyer and mother argue that the order can no longer be implemented having regard to the elapse of time – Significant anger management issues found to exist at the time of the trial in 2013 have not been addressed – No basis to grant father’s interim application – Application dismissed – Mother seeks vexatious litigant order under s 102Q of the Family Law Act 1975 (Cth) and whilst the elements may be satisfied, the discretion should not be exercised in this particular case – Consideration of the words “frequently” and “without reasonable ground” – Application refused – Father’s substantive application to be placed in the list of cases awaiting a trial but not to be relisted until evidence of the issues expressed as concerning in 2013 have been addressed.

Family Law Act 1975 (Cth)
Sentencing Act 1991 (Vic)

Attorney-General v Altaranesi [2013] NSWSC 63
Attorney-General for New South Wales v Wilson [2010] NSWSC 1008
Bigg & Suzi(1998) FLC 92-799
Bretton & Bondai[2013] FamCAFC 168
Brogden v Attorney-General [2001] NZCA 2008
DPP v Maulio and Ors [2006] VSC 188
Lancet & Deaves [2012] FamCAFC 36
Marsden v Winch (2009) 42 Fam LR 1
Mudie v Gain River Pty Ltd (No 2) [2002] QCA 546
Pascoe v Liprini [2011] NSWSC 1484
Pelerman & Pelerman[2000] FamCA 881; (2000) FLC 93-037
Rice v Asplund (1979) FLC 90-725
Siteberg Pty Ltd v Maples [2010] NSWSC 1344

APPLICANT:

Mr Pedrana

RESPONDENT:

Ms Roberts

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

MLC

1231

2011

DATE DELIVERED:

2 April 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT

Ms Glaister

SOLICITOR FOR THE APPLICANT:

Counsel Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Nicholson

SOLICITOR FOR THE RESPONDENT:

Lilley Dawson

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Brennan

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the application by the father for interim orders as set out in the application filed 4 August 2014 (and as amended by the written submission) is dismissed.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pedrana& Roberts (No 2)

Details

AGLC: Pedrana& Roberts (No 2) [2015] FamCA 231
Case: [2015] FamCA 231
Decision Date: 2 April 2015

CaseChat Overview and Summary

In *Pedrana & Roberts (No 2)*, Cronin J considered an application by the father for interim orders and substantive relief concerning the care of a child, M. The mother had also filed an application under s 102Q of the *Family Law Act 1975* (Cth).

The court was required to determine whether to grant the father's application for interim orders, and if not, under what conditions the father's amended application for substantive relief should be adjourned for final hearing. Additionally, the court had to consider the mother's application under s 102Q of the *Family Law Act 1975* (Cth).

Cronin J dismissed the father's application for interim orders. The court adjourned the father's amended application for substantive relief and the mother's response to a date to be fixed for final hearing, but only upon the fulfilment of specific conditions. These conditions included the father filing and serving a comprehensive psychiatric report addressing anger management issues relevant to the child's care, and evidence from an expert child psychologist, nominated by the Independent Children's Lawyer, detailing how any reintroduction program for the father and child should be undertaken. The mother's application under s 102Q of the *Family Law Act 1975* (Cth) was otherwise dismissed.

Orders

Orders of the court

That the application by the father for interim orders as set out in the application filed 4 August 2014 (and as amended by the written submission) is dismissed.

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 M (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.

The foregoing order is always subject to any order of a judge to the contrary.

That the mother’s application for an order under s 102Q of the Family Law Act 1975 (Cth) is otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Save as to any issues of costs, all interim applications are otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Pedrana& Roberts (No 2) [2015] FamCA 231

Most Recent Citation

Ericsson and Jarrold (No.9) [2019] FCCA 3202

Cases citing this decision · 3 of 3 shown

Wood and Muller
[2020] FamCA 162 Para 4

…support the making of a vexatious proceedings order as sought by the wife. The wife relies upon the decision of Cronin J in Pedrana & Roberts (No 2) [2015] FamCA 231 (“ Pedrana”) at paragraph 63, where his Honour noted:- Section 102QB applies if the court is satisfied a person has frequently instituted or conducte…
Ericsson and Jarrold (No.9)
[2019] FCCA 3202 Para 3

…onsidering whether this amounts to the frequent initiation of proceedings, I note the following comments made by Cronin J in Pedrana & Roberts (No 2) [2015] FamCA 231: It is conceivable that a small and limited number of proceedings could fall within the definition of ‘frequently instituted’ if they were an attempt…
Narkis and Narkis (No 6)
[2017] FamCA 226 Para 5

…Senior counsel for the husband brought to my attention the decision I made in Pedrana and Roberts (No 2) [2015] FamCA 231 and specifically paras 64 and 65 thereof. There, I said: 64.The first step therefore is to consider whether the father’s proceedings have been frequent. In my view, the endeavours since the midd…

View all 3 citing cases →

Cases cited in this decision · 11 of 11 shown

Bretton & Bondai
[2013] FamCAFC 168 Para 2

…In Bretton & Bondai [2013] FamCAFC 168 at [59] Finn and Strickland JJ noted that “no reasonable chance of success” is a conceptually different test to the “doomed to fail” test.…
Attorney General v Tareq Altaranesi
[2013] NSWSC 63 Para 3

…re without reasonable grounds is one which must be gauged objectively and not from the perspective of the litigant (see Attorney-General v Altaranesi [2013] NSWSC 63). The provision is concerned with effect and consequence rather than motive and design (see Pascoe v Liprini [2011] NSWSC 1484) but on any view, thos…
LANCET & DEAVES
[2012] FamCAFC 36 Para 6

…In a comprehensive and helpful written submission, counsel for the mother referred to Lancet & Deaves [2012] FamCAFC 36 but that was a decision where it was effectively an application for fresh orders. It does not assist me here.…
Pascoe v Liprini
[2011] NSWSC 1484 Para 3

…ney-General v Altaranesi [2013] NSWSC 63). The provision is concerned with effect and consequence rather than motive and design (see Pascoe v Liprini [2011] NSWSC 1484) but on any view, those proceedings must be more than lacking of success; they must be seriously and unfairly burdensome, prejudicial or damaging or…
Siteberg v Maples
[2010] NSWSC 1344 Para 4

…equently instituted” if they were an attempt to relitigate or get around an issue that had already been determined (see Siteberg Pty Ltd v Maples [2010] NSWSC 1344 and Brogden v Attorney-General [2001] NZCA 2008).…
Attorney General of NSW v Wilson
[2010] NSWSC 1008 Para 2

…a court without reasonable ground. That is, the proceedings must relate to baseless applications ( Attorney-General for New South Wales v Wilson [2010] NSWSC 1008) or repeated oral applications with no basis ( Wilson ).…
DPP v Maulio, Tuvale & Poluleuligaga
[2006] VSC 188 Para 3

…s order enables the authorities of the State to see whether an offender has demonstrated a capacity to be of good behaviour (see DPP v Maulio and Ors [2006] VSC 188). All of the information about the sentencing of the father, the attitude of the police, his record of interview, the view of the correction office p…
Mudie v Gainriver Pty Ltd (No 2)
[2002] QCA 546 Para 3

…d unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment (see Mudie v Gain River Pty Ltd (No 2) [2002] QCA 546).…
Pelerman v Pelerman
[2000] FamCA 881 Para 1

…principles to be applied when considering an application for summary dismissal were set out in Bigg & Suzi (1998) FLC 92-799 and Pelerman & Pelerman [2000] FamCA 881; (2000) FLC 93-037. The power for summary dismissal is a discretionary one but relief “is rarely and sparingly provided”.…
NSWSC 1344 and Brogden v Attorney-General
[2001] NZCA 2008 Para 4

…elitigate or get around an issue that had already been determined (see Siteberg Pty Ltd v Maples [2010] NSWSC 1344 and Brogden v Attorney-General [2001] NZCA 2008).…
Rice v Asplund
220 FLR 300

…Fam LR 1 Mudie v Gain River Pty Ltd (No 2) [2002] QCA 546 Pascoe v Liprini [2011] NSWSC 1484 Pelerman & Pelerman [2000] FamCA 881; (2000) FLC 93-037 Rice v Asplund (1979) FLC 90-725 Siteberg Pty Ltd v Maples [2010] NSWSC 1344…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
1 mention (from Para 4)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)
Sentencing Act 1991 (Vic)
1 mention (from Para 3)