Pedrana& Roberts (No 2)

Case [2015] FamCA 231


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 of 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

  1. 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.

  2. 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…

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

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

1.

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.

2.

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.

3.

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

4.

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

IT IS CERTIFIED:

5.

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

6.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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