PRENDERGAST & PARSONS

[2012] FamCA 634

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS [2012] FamCA 634

FAMILY LAW – PRACTICE AND PROCEDURE – Ex parte application seeking leave to file an application pursuant to s.118 of the Family Law Act 1975

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Slater & Slater [2004] FamCA 990
Re Attorney- General (Cth); Ex Parte Skyring [1996] HCA 4; [1996] 135 ALR 29
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

FILE NUMBER: MLC 264 of 2008

DATE DELIVERED: 6 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 30 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. The applicant father have leave to file an Application in a Case for substituted service on the respondent mother or a Location Order and/or a Commonwealth Information Order, such application to be filed no later than 4:00 pm on 4 September 2012 and listed for hearing in the Judicial Duty List at 10.00 am on 12 September 2012 (if practicable).

2. The applicant’s Application in a Case filed 6 July 2012 be adjourned for hearing in the Judicial Duty List at 10:00 am on 12 September 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prendergast & Parsons has been approved by the Chief Justice pursuant to s121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 264  of 2008

Mr Prendergast

Applicant

And

Ms Parsons

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an Application in a Case filed 6 July 2012 in which the father Mr Prendergast seeks permission to file an Initiating Application, to have that application dealt with urgently and to have the matter listed for hearing in the Family Court at Dandenong.

2. The application that he seeks permission to file is annexed to his affidavit filed 6 July 2012 and seeks orders for: a shared care arrangement for the child  T born in February 2000 (“the child”); the father to collect the child from school each Friday and the mother to pick the child up from the father’s house before school the following Monday; shared care during the school holidays and special days including Easter and Christmas; and for the father and the mother to communicate regarding the child’s welfare via email or for urgent matters by phone.

3. The father says he does not know where the mother is living and seeks to locate her address by way of a location order. 

Background

1. The father is 48 years of age. The mother is 41 years of age. The parties were married in 1998 and were divorced in April 2003. T is the only child of their marriage.

2. The father was declared a vexatious litigant pursuant to s.118(1) of the Family Law Act 1975 (Cth) by Morgan J on 25 July 2005. Since being declared a vexatious litigant the father initiated proceedings seeking parenting orders which were heard and determined by Guest J. On 17 October 2007 Guest J made orders that the mother have sole parental responsibility for the child and that she live with the mother. He further ordered that the child spend time with the father each alternate Sunday between the hours of 10.00 am and 5.00 pm, from 3.00pm until 5.00pm each Christmas Day, on the child’s birthday and on Father’s Day and at such other times as agreed by the parties.

3. On 11 February 2008 the father filed an application in a case in which he sought leave to file an application for a stay of the orders made by Guest J. That application was dismissed.

Previous Proceedings

1. Justice Guest expressed significant reservations about the manner in which the father conducted the proceedings before him as a self represented litigant. He said at paragraph 326 of his judgment:

   I have throughout the trial expressed my concern as to the husband’s presentation, demeanour and his fanatical attitude towards the wife.

   He went on to say at paragraph 343 as follows:

   The fanaticism in the strength of the husband’s beliefs, despite overwhelming and independent evidence to the contrary is planetary. It is almost beyond comprehension that, even to the time of closing addresses he has maintained his view without demur. I have rarely, if ever, come across such an extreme situation and which by any objective test has demonstrated the need for professional assistance.

2. He described the husband’s evidence at paragraph 76 as being:

   far from cohesive and at time descended into chaos. He was argumentative and difficult to such an extent that I was obliged to caution him.

   and, at paragraph 32, that:

   for the husband, the potency and vehemence of his attitude towards the wife both as to her parenting of the child and her emotional and psychiatric balance has overwhelmed the factual reality of the evidence in these proceedings.

Legal Principles

1. On the first return date of an application for leave to start a case the Court may dismiss the application, or order the person to serve the application and affidavit, file and serve any further affidavits in support of the application and list the application for a hearing.

2. Rule 11.05(4) of the Family Law Rules 2004 (Cth) provides that in cases such as this, where an order has been made pursuant to s118(1) of the Family Law Act 1975 declaring the husband a vexatious litigant, “the court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.”

3. In Slater & Slater [2004] FamCA 990 O’Ryan J pointed out that the purpose of the procedures set out in the Rules with respect to vexatious litigants is to

   …prevent the other party from needing to suffer the time and expense of coming to court to oppose numerous unmeritorious applications by the person against whom the order was made. If the court decides the application may have merit, the applicant must then give the respondent notice of the application. Thus the respondent will have the opportunity to be heard in relation to those applications that the court has considered to have some possible merit. [para 51]

4. In Re Attorney- General (Cth); Ex Parte Skyring [1996] HCA4; [1996] 135 ALR 29 at paragraph 8 Kirby J approached an application for leave, he said, with the following considerations in mind:

   First it is always important for every judge to keep an open mind in case a person who has been rejected by the courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented;

   Secondly, it is regarded as a serious thing in this country to keep a person out of the courts. The rule lf law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this Court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court’s jurisdiction;

   Thirdly, the Court must never shy away form the determination of a point sought to be argued simply because it may have major ramifications….

The father’s evidence

1. According to the father’s affidavit in support of the application he seeks to file, which is annexed to his affidavit filed 6 July 2007, the father spent time with the child in accordance with the order of Guest J until about December 2008 when he said he had to go to Western Asia to support his sister with her application to come to Australia as a refugee.

2. The husband does not say how long he stayed in Western Asia however he does depose to having obtained employment . He remained overseas until February 2011.

3. It is his evidence that he made two attempts to contact the child by mail during the period he was overseas. On the second occasion he says he wrote to the mother and the child by registered mail and that the letters were received by the mother on 16 July 2009. Those letters and a receipt confirming their delivery are annexed to the affidavit.

4. The father deposes that when he returned to Australia in February 2011 he contacted the mother asking to see the child. The mother brought the child to a Hungry Jacks in Melbourne. The father’s evidence is that when the mother arrived she got out of her car with the child and approached his brother’s car.. She was holding the child’s hand with both her hands and there was a note in the child’s hand. According to the father the mother was dragging the child towards his brother’s car and then physically directed the child’s hand and placed the note on the windscreen before walking away with the child.

5. The father did not say when this occurred, however, if, as suggested by his affidavit, this took place shortly after his return to Australia, there is no explanation as to why it has taken him until July this year to make this application. If however it did not happen until recently, the father has not provided any explanation as to why he did not take any steps to see the child after his return.

6. When I asked the father about the note that he deposed had been placed on the windscreen of the car by the child he told me that he had lost it in transition between houses. He did however say that the note was typed and he disputed that it was the child’s signature on the note. Although the father said he knew what was in the note he did not actually depose as to the contents of the note in his affidavit or tell me what was in the note during the case.

7. The father also deposed that his sister contacted the mother to ask her if the father could see the child but that the mother refused. The father did not explain how his sister contacted the mother or when exactly this occurred.

The application for leave

1. The father was both polite and courteous during the hearing before me. Although I did not observe any behaviour of the kind described by Guest J, it is clear from the affidavit annexed to his affidavit in support of his application for leave that he is still seeking to traverse the same issues that were the subject of the hearing before Guest J. He deposed to the mother’s mental health issues, her violent behaviour and her inability to care for the child, all of this being prior to separation, and her alleged abuse of the child following separation and prior to the hearing before Guest J. Having not seen the mother or for that matter the child since late 2008 except for the one occasion since his return to Australia he asserted that the mother continues to suffer from “volatile mental health issues.”

2. The father in his submissions also relied upon what he perceived to his unjust treatment during the hearing before Guest J.

3. In order to be granted leave I must be satisfied that the father’s proposed application has a reasonable likelihood of success. The parenting orders made by Guest J were final parenting orders and the father must demonstrate that there has been a change of circumstances which would justify the reopening of those parenting issues. (Rice & Asplund (1979) FLC 90-725)

4. I am conscious that the father as a self represented litigant may not understand the exact nature of the case he must make out and on that basis may not have made submissions or presented his case directing me to the relevant issues to be determined, however, having regard to the observations of Kirby J, I have, in determining his application for leave to issue proceedings, carefully taken into account the material contained in the affidavit filed by the father and his submissions.  

5. Clearly Guest J concluded, having at that time heard all of the evidence, that it was in the child’s best interests that she should spend time with the father albeit not the time he sought then or now seeks. According to the father’s evidence he did spend time with the child for some 12 months following the making of the orders. Circumstances have now changed in that the arrangement which provided for the child to spend time with the father has now broken down, albeit that it may be as a result of his own actions.

6. It is clear from the decision of Guest J that the father’s conduct of the proceedings is likely to have been extremely onerous for the mother and although I have not observed the behaviour observed by Guest J when he appeared before me, it is also clear from the father’s affidavit that he wants to revisit the issues in the previous case. If I were to grant leave to the father to issue the proceedings this is likely to impose a significant burden on the mother. However I am also conscious that if I refuse leave that will effectively bring to an end any possible relationship between the child and the father in the foreseeable future.

7. It is possible that the child, who is now 12 years of age, having not seen her father for some years, no longer wants to see him. However, whilst the father’s evidence about what occurred when he attempted to resume his relationship with the child is untested, it raises some questions in my mind in reaching a decision as to the likelihood of success of the father’s application. In particular his evidence that the note was typed and that it was not the child’s signature on the note.

8. Although the Court might not make orders in the exact terms sought by the father in his application, there is, in my mind, a possibility of orders providing for the child to spend some time with the father. I am not, without having heard from the mother, able to assess with any certainty the “reasonable likelihood of success” of the father’s application and, in those circumstances, I propose to require service of the application upon the mother so as to give her the opportunity to be heard as to why leave should or should not be granted. 

9. In the application the father seeks to file, he seeks a location order, however it is clear from his affidavit that both he and his sister were able to contact the mother. In those circumstances it may be possible for the father to either serve the documents upon the mother or that there are ways of bringing the documents to her attention which do not require me to make a location order.  In those circumstances I propose to grant leave to the father to file an Application in a Case for substituted service or Location Order and/or a Commonwealth Information Order and otherwise adjourn the matter to the Judicial Duty List on 12 September 2012.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 August 2012

Associate: 

Date:  6 August 2012