Pedrana& Roberts (No 2)
[2015] FamCA 231
•2 April 2015
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
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.
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).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER:
| Mr Pedrana |
Applicant
And
| Mr Roberts |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Mr Pedrana (“the father”) seeks orders relating to his son the child aged five. Ms Roberts (“the mother”) is the respondent and she opposes what the father seeks. The father is endeavouring to start a relationship with the child that has been stalled now for more than two years. The circumstances of this case are unusual and require consideration but on any view I can contemplate, the father’s application is premature and must fail. The mother then seeks to exclude the father from involving her in any future further proceedings without leave of the Court. In my view, that order too is inappropriate.
The father is a 36 year old technical professional. The mother is a 34 year old health professional. They commenced living together in February 2005, married in 2010 and separated in February 2011. It will be seen that the child was 18 months old when the relationship ended.
These proceedings are not the first between the parties. In April 2013, after a contested hearing at which the father appeared without legal representation, limited parenting orders were made that have clearly not been implemented. The only order that requires consideration in this application relates to the father’s time with the child. It was conceded by counsel for the father that the only issue in the future will be the consideration of time with the child.
The 2013 orders provide that on one Saturday per fortnight between the hours of 10.00am and 4.00pm, the father was to spend some supervised time with the child. The supervisor was to be an agreed person or failing agreement, the matter was to return to court to have the supervision fixed.
In 2014, the father, still unrepresented, sought to spend time with the child but the mother opposed not only the implementation of the 2013 orders but that any time occur at all. To his credit, and of assistance to the Court, the father is now represented.
On 26 February 2015, the father filed an amended application for final orders but in which he also sought interim orders. At the hearing, Ms Glaister of counsel handed the Court a set of proposed orders which was slightly different to that set out in the application. What was proposed was that the father spend time with the child for two hours every second Saturday and two hours on Father’s Day supervised by either his partner, C Contact Centre or some other agreed person. Various machinery provisions were suggested. It was then suggested in respect of final orders, all extant proceedings be adjourned to a date to be fixed no sooner than six months from this day and the husband set out various matters associated with compliance with costs orders (which is no longer relevant) and his attendance upon a psychiatrist. In addition, a family report be prepared focussing on the issues of the reintroduction of the child into his life.
On 26 March 2015, in response to the father’s filed application, the mother filed a response simply seeking a dismissal of his application including that his interim application be summarily dismissed. She then sought relief under s 102QB of the Family Law Act 1975 (Cth) (“the Act”) that the father be declared a vexatious litigant with consequent orders. Thus, my immediate task is to deal with the interim applications but then to decide what to do with the father’s substantive application.
The Court had the benefit of the assistance of counsel for an Independent Children’s Lawyer. It was submitted by her that it was most unusual for an Independent Children’s Lawyer to adopt a position which in essence, was that the father had to fail. As counsel pointed out, “still we wait”. That was a reference to the variety of attempts the father has made about contact with the child all without addressing the major issues of concern set out in 2013 reasons for judgment. It was submitted by the Independent Children’s Lawyer that unless change could be shown, the Court could not be satisfied that the child should be put through the process of the investigation contemplated by the father. Notwithstanding my observation that there was suddenly a glimmer of hope, counsel submitted that it was too late for that because the father had well known what his problems were and the answers were in his hands. It is hard to disagree with much of that sentiment.
There were literally three applications here. The first relates to the question of whether the father’s application is simply seeking to implement the alternate weekend contact with the dispute being that of who is to supervise. The second is the question of whether the father’s substantive application seeking much wider parenting orders should be dismissed on a summary basis and the third is the question of whether or not an order declaring the father a vexatious litigant should be made.
Although the summary dismissal application should normally be heard first, there is much overlap between all three applications. Accordingly, I propose to deal with them together but to isolate particularly issues of proof.
The evidence relied upon by both parties was contained in their respective affidavits. That evidence could not be tested and in this case, for reasons which follow, it was unnecessary that it should be so.
The father’s evidence
The father set out that he had some mental health issues but was otherwise in good health and maintained employment in his father’s business as a consultant. He had repartnered with 34 year old Ms GG who works for the C organisation as an adolescent care worker. The father and Ms GG have three bedroom accommodation and Ms GG has two children aged six and eight who live with them. She is expecting the father’s baby in April 2015.
The father deposed to the fact that the 2013 orders had not been implemented because agreement had not been reached. It was not quite that simple. The father’s conduct culminated in July 2014 with an intervention order being made against him for two years. More importantly, he was convicted of aggravated burglary upon a solicitor’s office.
The aggravated burglary
The precise details of what happened in the aggravated burglary remain obscure because of the way the father glossed over the details. It was only when the mother subpoenaed the police records that any indication was given of exactly what occurred. It seems that the father was in company with a male colleague and entered the solicitor’s offices. The solicitor had acted for the father’s parents and there was some form of dispute about documents. The father described his behaviour as a very poor decision and he acknowledged that the solicitor would have been very frightened. He pleaded guilty when charged by police.
Against the perception provided by the father of his role, the mother pointed to the subpoenaed material from the police which showed that the father had been involved in searching through the solicitor’s office and preventing a woman from calling the police. He grabbed her by the shoulders and ripped the telephone cord from the socket. His description was that he did not touch “the solicitor” but he made no mention of who this other woman was.
On my interpretation of the police record, the father is shown as having been convicted and released on a community corrections order for 12 months. Section 37 of the Sentencing Act 1991 (Vic) provides that such an order can be made if a pre-sentence report is received (if required). Nothing was said about what the sentencing court thought. It is said that a community corrections 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 people as to his suitability, his diligence in carrying out any orders of the court including as to treatment, were all missing.
Aggravated burglary as an offence in the State of Victoria carries a sentence of up to 25 years imprisonment. I must conclude therefore it was serious and the fact that he was not immediately imprisoned does not alleviate my concern. That is particularly so in the circumstances under which I made orders in 2013 expressing concern about the father’s anger management.
M and the father
In respect of the child, the father has had no relationship with him since prior to the 2013 orders. the child was only three at the time the orders were made.
The child’s mother has remarried and has two other children from her new partner. The father set out the difficulty he faced with the child being settled in family and school life. Despite that, he said he wanted to get to know his son and have him involved in his new family’s life.
The father’s evidence about the supervision issue
Turning back to the 2013 orders, having given the father an opportunity to come back to court to have the supervisor fixed, the orders failed. The father’s attempts to contact the mother about implementing the orders were unsuccessful. The mother rejected the various people he named but she did nominate her step-brother. The father rejected that suggestion on the basis that allegations might be made against him if the mother’s family members were used. I am not sure why that was so.
Further negotiation took place between the mother and the father with the mother rejecting his suggestions and proposing alternate ones. As the father acknowledged, he became increasingly frustrated but this was still only in the middle of 2013. The father said he felt lost and hopeless and as a consequence, stopped the communication. He did write to the Court’s case co-ordinator seeking what process to take but he received no reply. I am unsure why that was the case but in any event, the case co-ordinator would only have been able to refer the father to the Court’s website as staff members are prohibited from giving legal advice and that is what it would have been.
The father attends the mother’s home
At the child’s birthday in 2013, the father and his new family, unannounced, descended on the mother’s home with presents although the father remained in the car. The mother refused to participate.
At Christmas in 2013, the father went to the mother’s house with presents but he was again rebuffed. Local police refused to assist him.
The intervention order
In due course and as a result of the Christmas events, an intervention order was made but only after the father originally sought to contest it. He said that the basis of his contest was that the child had been named on the order. He ultimately conceded that the order should be made “without admission”. That was months later again. To his credit, the father acknowledged that his conduct would have been intimidating and uncomfortable for the mother. It is perhaps sad that she read that in his affidavit rather than having the apology sent to her direct.
It is important also to put all of this in context. The father and his new partner have been in a relationship for all of this time. Notwithstanding that new turn of events, he had not addressed the issues about which the mother was concerned and which were referred to in the 2013 judgment but he also embroiled his new partner in the dispute by having her attend at the birthday event. To heighten my concern, he was also in the relationship at the time he was involved in the aggravated burglary.
The medical position
As 2014 unfolded, the father said his doctor had been providing him assistance with depression but he did not engage other professional services. He thought his general practitioner had not recommended anyone but that would sound surprising. Again unfortunately, no corroboration of the medical position was provided by the father.
It was of the time of attending upon his doctor that he commenced the current proceedings. If his depression had stabilised and he wanted to have a reasonable relationship with the mother, his cryptic message in August 2014 to the mother’s solicitor and her counsel would hardly have portrayed that. It is also disconcerting that all of the evidence now presented by the father is markedly different to that he gave in November 2014. That may attributable to the absence of the objectivity of a lawyer but the corroboration of exactly what is happening to his mental state was, and is, missing as is any indication of the progress of the proposed psychiatric appointment. In his evidence, he indicated that he was going to attend the psychiatrist. At the hearing, his counsel produced a referral only dated three days before from his general medical practitioner. Again, the referral may not be all that helpful because it indicated that it was because of depression and no reference was made to any of the concerns expressed by the Court in 2013. One might concluded that the doctor knew nothing about any of that.
The father’s evidence also detailed his personal circumstances and the assistance he received from his extended family including his parents. As a general observation, in respect of his past behaviour, he said that he had reflected and could see that he lacked insight. It is because of that that he appears now willing to attend the psychiatrist.
Ms GG
The father’s partner Ms GG filed an affidavit and she was glowingly positive and supportive of the father both as an individual and a step-parent to her children. She put herself forward as the proposed supervisor. Having regard to my earlier remarks about her involvement in the father’s life during these various problems subsequent to the 2013 orders, not to mention her own closeness to the father, and her complete absence of any relationship with the child, I could not consider her to be an appropriate person to remain objective. No evidence was presented to me as to the position relating to the C Contact Centre and in particular, how they would deal with the child who might not understand who the father was. In the child’s case, two years duration is a very significant period in his life in circumstances where he is living with a man who is the father of his siblings. Some evidence must be considered as to the appropriate way to introduce the child.
In 2013, there was no suggestion of any problem about the continued relationship but rather, how to deal with a security issue because of my findings of the instability of the father. I accept the submission of counsel for the Independent Children’s Lawyer that much water has passed under the bridge such that this is a situation in which the father needs to establish that there has been a change of circumstances.
In 2013, I was very conscious of the fact that supervised contact could not last forever nor should it but I made clear that there was no next step beyond supervision available without the husband establishing that he had all the problems identified particularly by Dr B, under control. As counsel for the Independent Children’s Lawyer pointed out, her instructor is still waiting.
Accordingly, whilst encouraging as the evidence of Ms GG may be, she is not the appropriate person to commence that reintroduction program let alone be the supervisor for protective purposes.
The mother’s evidence and position
The mother’s evidence was that the father had “anger management issues” which had gone untreated. In respect of those matters, my earlier reasons indicated that I was troubled about:
·The father having been violent to the mother;
·The father’s domination, disrespect and denigration of the mother;
·The father’s non-acceptance of his own need for professional help; and
·The father having difficulty controlling his emotions.
I also made findings of serious threats, abuse and indeed, an assault. Whilst the father may wish the Court to accept that he is a changed man, he has two significant problems ahead of him. The first is that all of the allegations which were found to be true and which established him to be a violent man, seemed to have resurfaced through the aggravated burglary charge and conviction. The second point is that the findings showed that he had little respect for the mother or those assisting her and indeed, his July 2014 email to the mother’s lawyers and his attendances at her home unannounced, showed little had changed.
The mother then observed that the father had not undertaken counselling or if he had, no details were provided.
Counsel for the mother observed that when the father was before the Court in January and the question of costs was raised, he said that he had paid his lawyers $7500. That was in the context of the mother’s claim for costs against him. The production of the actual sums that he had paid through the trust records of his solicitor show that he had paid double that amount. It was submitted that the father had continued to minimise his conduct and there was no evidence that he was addressing the real issues that had been raised in the judgment with his doctor.
It was submitted on behalf of the mother that not to dismiss the father’s application would mean that the mother would have to continue to be a litigant in the proceedings which she could ill afford and which was obviously having an impact upon her. She was the unchallenged parent of the child and obviously has the responsibilities of two other children as well.
Counsel for the Independent Children’s Lawyer made her position very clear as I have earlier indicated and submitted that it was not appropriate for the mother to be the parent of the child in a pressure cooker environment.
Submissions
Counsel for the Independent Children’s Lawyer went through the father’s affidavit to observe that it had been prepared by a lawyer and therefore one should conclude that it had been well considered. I agree with counsel for the Independent Children’s Lawyer that many things have just been glossed over. In my view, the father’s sanitized version of all of these events attached to which there is an acknowledgment of his own wrongdoing and regret, must be viewed with some caution if not scepticism, in the context of the fact that he has done nothing about the issues that were highlighted in the 2013 judgment but which also seem to have been repeated subsequent to the judgment.
Counsel for the father in an admirable submission, put that this was not a situation in which changes of circumstances needed to be established. She submitted that the 2013 orders showed there was a finding that it was in the best interests of the child to have contact and it was now only a question of how that was implemented. She submitted that the Court should send the matter off to a family consultant to see how that was to be appropriately done and that all of the other matters could wait for time to sort the problems out. Accordingly, it was submitted that there should be contact implemented but it was just a question of how.
In my view, this application for interim relief is premature but I could not make the same finding in respect of the application for substantive relief. The timing of the filing of the application for substantive relief in my view, is not as relevant as the timing of the final hearing. More importantly, the timing of the process of the preparation for trial is critical because that is the point in time at which a family consultant may become involved with the child and the mother will be again embroiled in litigation. However, the problem of pressing the “go” button early can be ameliorated by orders restricting when the matter is to be relisted for a final hearing and in my view, that is the proper order to make here.
Summary dismissal?
On an application for summary dismissal, the onus lies with the person seeking it and it is to be assessed on the basis that the person’s evidence would be accepted.
42.Rule 10.12 of the Family Law Rules 2004 (Cth) provides that in respect of an application for summary orders, if inter alia, it is claimed that application is frivolous, vexatious or an abuse of process or
that there is no reasonable likelihood of success. Section 118 of the Act is supplemented by the rule.
The 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”.
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.
I can be comfortably satisfied that the father’s interim application has no reasonable chance of success but that application is not being heard on the basis of a summary dismissal so much as on its merits. To the extent that the father’s interim application seeks simply to implement the 2013 orders where there was a hiatus over the supervisor, he must fail on the basis that no obvious and appropriate supervisor has been agreed upon and I am not in a position to nominate one from this evidence having regard to the fact that time has now created a concern for me that the child may not know his father. As I indicated earlier, it is not appropriate, absent some specific evidence, for the contact centre to fulfil such a function. Their role is for the protection of the child.
Thus, the real point about the summary dismissal question is its relevance to the application for final orders. In my view, it was clear, as submitted by counsel for the father, that in 2013, there was an order made for contact to be maintained because it was in the child’s best interests. I reject the submission of the mother that an elapse of time makes the order defunct. The order lives on but the question then arises as to whether or not it can simply be implemented as was intended. It was the submission of the Independent Children’s Lawyer that the Court should not because so much had changed. The most significant change was that the child had settled into a new life. It was therefore submitted by counsel for the Independent Children’s Lawyer that the principles of Rice & Asplund (1979) FLC 90-725 had to be considered.
I accept that even if the mother was not seeking to alter the 2013 orders, the Independent Children’s Lawyer was adopting the position that there was a change of circumstance that justified the Court revisiting the order and not implementing it. I find that is the correct view.
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.
Rice and Asplund (supra) is often referred to as a case indicating a rule as to how courts should deal with applications to vary extant final parenting orders. It is its principle that is important. As Evatt CJ said, it is not normally in the best interests of children for final arrangements to be re-opened. In Marsden v Winch (2009) 42 Fam LR 1, the Full Court observed that if the Court was asked to re-open a case, it needed to consider the past circumstances as well as the question of whether there was a likelihood of orders being varied in a significant way as a result of a new hearing. That is, there clearly needed to be some changed circumstance or some new factor arising or some factor which was not disclosed at the previous hearing that would, likely, support a variation of those orders in a way that would benefit the child more than any disruption caused by re-litigation. That principle needs consideration here.
The circumstances under which the 2013 orders were made were that there was a serious anger management problem which justified a limitation of the contact between the father and the child for the child’s protection. There can be no misunderstanding about what was ordered. There can be no argument that I intended that if and when the supervision came to an end, (either by a contact centre declining to continue or a refusal of supervisors to do so) the time would not have become unrestricted without significant attention by the husband to his problems. He has not done any of the things that were suggested by the forensic psychiatrist, Dr B. Those were the circumstances under which the order was made so for the father to simply now say that the supervisor issue should be addressed, misses the substantive point.
To the extent that it would be necessary for the father to show new circumstances, he has failed to do so. His change of personal circumstances has not addressed the substantive problem and as I have indicated, it may have been entrenched by his conduct since 2013.
The dilemma is that time has presumably dimmed the child’s understanding of his father. There is no evidence one way or the other but that is not a basis to test the waters as suggested by counsel for the father. To simply send the parties off to a family consultant to see how to implement the 2013 orders misses the point of the failure to address the substantive issue.
Nothing is therefore available for me in the evidence to suggest that endeavouring to search for that evidence would benefit the child more than any disruption it would almost certainly cause where there is no evidence he knows his father.
Thus, the principles of Rice and Asplund (supra) do apply here.
The father’s application for interim orders must fail.
In respect of the summary dismissal of the substantive parenting application of the father, as earlier indicated, the relevant question is that it has no reasonable chance of success. That may very well be the case if the father does nothing as seems to be the prophesy of both the mother and the Independent Children’s Lawyer. I am not prepared to accept that. The father now has an appointment with a psychiatrist. If that is dealt with in what appears to be something of a peremptory way without significant background information such as Dr B had, there would be a strong argument that any substantive application had no reasonable prospect of success. If the expert did not know of all of the father’s problems since 2013 and was not able to put those into context with what he is now proposing to treat, there would be a similar outcome.
Albeit late and questionably so when lawyers have been acting for him for months, it is still my view that the Court considered in 2013 that the child had the right to know and be cared for by both parents. To simply deny the father a chance to litigate is pointless because he could simply bring another application even if the mother was not involved after a vexatious litigant order. In my view, this current application will have to be seen for what it is; a start. If the father fails to keep the mother, through her lawyers and the Independent Children’s Lawyer, abreast of his progress but rather takes a forensic approach, he must expect little co-operation. Having said that, the starting point is as the mother always said it was, the addressing of his anger management problem. If that is addressed, the father should have the right to begin the pathway to a final hearing and if there is a really strong case which cannot be heard in reasonable time, he might bring a proper application for interim orders. To do that however, he would need some expert evidence as to how a reintroduction can occur without destabilising the child.
Accordingly, I would not summarily dismiss the father’s substantive application but I will make restrictions on the matter being listed without further order of the Court. That will relate to note just his own treatment but also evidence of a child expert to show he understands how the child could be reintroduced into his life without trauma.
I turn then to the S 102QB question.
Vexatious litigant?
I turn finally therefore to the mother’s application for declarations and injunctions.
The words “vexatious proceedings” are defined in s 102Q of the Act to include proceedings instituted designed to harass or annoy another person or pursued in 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).
The question of whether or not proceedings are 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, those proceedings must be more than lacking of success; they must be seriously and 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).
Section 102QB applies if the court is satisfied a person has frequently instituted or conducted those vexatious proceedings in a court. It is conceivable that a small and limited number of proceedings could fall within the definition of “frequently 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).
The first step therefore is to consider whether the father’s proceedings have been frequent. In my view, the endeavours since the middle of July 2014 have been an attempt to get the contact with the child going but without addressing any of the issues earlier mentioned. In my view, the limited number of applications albeit they may have been the same application and adjourned, could easily fall within the definition of frequent. Insofar as the application or applications have been pursued without reasonable ground, as observed above, that must be examined objectively. It is much easier to examine that objectively if the father has been warned of the necessity to obtain the evidence to overcome the major problem that is now clear, he has not addressed. It would be difficult to accept that the father’s application was baseless because it unashamedly seeks contact which the Court found in 2014 should occur because it was in the best interest of the child. However, it is the repetitious nature of the same approach which must be said to have been made without proper basis after being warned of the necessity of getting the proper evidence. What has now occurred however is that the father has filed material indicating that there is a pathway being adopted that might produce an outcome that is good for the child. As I observed earlier, counsel for the Independent Children’s Lawyer said that it was too late for that but I disagree. If the child is ever to benefit from a relationship with his father it has to be after all of the issues about which the father was criticised, have been addressed. I am not prepared at this stage to say that his application is baseless.
Having said that, I take into account that the overriding purpose of the Act is to stop the father bringing actions which are seriously and unfairly burdensome to the mother or which cause her unjustified trouble. On any objective view, that is exactly what has occurred. That would justify a finding that the proceedings have been vexatious within the definition in the Act. However, all of that simply enlivens the discretion of the Court. How the discretion is to be exercised is to be guided by the very protective purpose for which such an order was designed to achieve. Having regard to the fact that I accept that the father may have started something that he should have long ago undertaken and the control can be given over the litigation pathway to the extent that the mother does not have to incur the unjustified trouble and harassment, I would not exercise the discretion against the father at this time. That is not to say that if the continued pathway was, as the Independent Children’s Lawyer suspected and as the mother has predicted, another application could not be made. At this stage, the mother has not established to my satisfaction that there is a justification for a complete restraint but there is a justification for not permitting the matter to go further to trial without the father first establishing that he has evidence which justifies a reconsideration of the matter. There will be orders accordingly.
I certify that the preceding Sixty Five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 April 2015.
Associate:
Date: 2 April 2015
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