REDDY & ARENA
[2019] FCCA 1494
•7 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDDY & ARENA | [2019] FCCA 1494 |
| Catchwords: FAMILY LAW – Application made by father to spend time with child aged almost fourteen years – final orders made in 2009 for mother to have sole parental responsibility – orders made no provision for father to spend time with the child or an older brother now aged seventeen years – father has not interacted with either child since mid-2009 – preliminary assessment of each children indicates both are unwilling to spend time with their father – father lives in Adelaide – mother and children live in Sydney – mother alleges father subjected her and the children to family violence – mother seeks summary dismissal of father’s application – father seeks to spend time with younger child, subject to professional supervision in Sydney at his expense – relevant considerations – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 67ZN, 69ZN, 69ZM, 69ZQ |
| Cases cited: H v W (1995) FLC 92-598 |
| Applicant: | MR REDDY |
| Respondent: | MS ARENA |
| File Number: | ADC 2636 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 17 May 2019 |
| Date of Last Submission: | 17 May 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 7 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cummings |
| Solicitors for the Applicant: | Resolve Divorce Lawyers |
| Counsel for the Respondent: | Mr Tadros |
| Solicitors for the Respondent: | Legal Aid NSW |
ORDERS
The application filed on 5 July 2018 as amended on 25 February 2019 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Reddy & Arena is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2636 of 2018
| MR REDDY |
Applicant
And
| MS ARENA |
Respondent
REASONS FOR JUDGMENT
Introduction
In Division 12A of Part VII of the Family Law Act 1975 the Legislature has provided some principles and obligations, which the court is required to apply in its conduct of child-related proceedings under the Act.
These principles and the discretions flowing from them stem from the Legislature’s recognition that prolonged and unnecessary litigation, in respect of arrangements for the care, welfare and development of children, has the potential to be deleterious to the best interests of such children and should be avoided, if at all possible.
One of the relevant Division 12A principles is that the court is to consider the needs of the children concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings [67ZN(3)].
Arising from this principle and the others delineated in section 69ZN, the court is endowed with the authority to decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily [69ZQ(1)(a)].
In this case, one of the parties wishes to dismiss the parenting application of the other at an early stage of proceedings, without the significant scrutiny of evidence, which would come from a final contested hearing involving cross examination and the gathering of other evidence. It being her position that such a hearing will serve no useful purpose and will be contrary to the best interests of the children who will be affected by it.
In contrast, the other party concerned contends that such an outcome would be premature, high-handed and unjust. But more significantly would result in the children concerned being deprived of the opportunity to develop a meaningful level of relationship with him and other members of their paternal family, from whom they have been estranged for a significant period of time.
Background
Mr Reddy “the father” and Ms Arena “the mother” are the parents of [X] born … 2001 and [Y] born … 2005. Currently the mother and children live at an undisclosed address in suburban Sydney. The father lives in suburban Adelaide.
Both parents are of …Religion, who were each born in Country A, as were the two children concerned. The family came to Australia, in 2008, as refugees from religious persecution in Country A. The parties finally separated in mid-June of 2009 and are now divorced.
There is no controversy between the parties that the last occasion on which the children had any contact, either physically or through some other medium, with their father, was on 15 June 2009, the date on which the parties separated, in difficult and controversial circumstances.
The father now seeks to resume some form of relationship with the children through mechanisms, which he would categorise as cautious, measured and child focussed. of Given [X]’s age, he concedes that he ([X]) should be able to determine the terms on which he should interact with his father, if at all.
On the other hand, it is the mother’s position that too much time has passed and too much damage done to the children’s relationship with their father for there to be any utility arising from the court entertaining the father’s application, particularly in terms of any advancement of the children’s best interests.
More significantly, it is her case that both [X] and [Y] have unequivocally stated that they have no wish to interact with their father. In these circumstances, given the emphasis placed on a child’s views provided by section 60CC(3)(a) of the Family Law Act, the mother asserts that it is likely to be emotionally detrimental to the children to compel them to be involved in a process against their wishes.
The mother further asserts that both children have valid and readily understandable reasons for not wanting to interact with their father. It is her case that the parties’ relationship, both in Country A and Australia, was one characterised by the father inflicting significant coercive violence on both her and the children. She alleges that the father frequently assaulted both her and the children and controlled her access to finances.
It is her case that she was subject to a serious and violent assault on 15 June 2009, and it was this incident that precipitated the parties’ final separation. Police and an ambulance were called to the parties’ former home to assist the mother and both [X] and [Y] were present during the incident. She further alleges that [Y] believed that the father’s actions (attempted strangulation of her) had resulted in his mother’s death.
On 29 June 2009 the Magistrates Court at Adelaide made a family violence order, in the mother’s favour, which named her as the protected person. She commenced proceedings, in this court, on 25 August 2009, seeking sole parental responsibility for [X] and [Y] and for orders to prevent their removal from the Commonwealth of Australia.
Thereafter, she alleges that the father stalked her, leading to him being arrested and charged with breaching the family violence order on 13 October 2009. At the time, she and the children were living in a women’s refuge.
On 27 August 2009, Federal Magistrate Mead (as Her Honour then was) made interim orders consistent with the mother’s application on an urgent and ex parte basis. On 17 September 2009, Her Honour made a further order dispensing with the need for the personal service of the mother’s application, on the father, and extending the time for him to file responding affidavit material.
Ultimately, in the absence of the father, on 24 November 2009, Federal Magistrate Mead made final orders in the mother’s favour granting her sole parental responsibility for [X] and [Y] and directing that the two children live with her.
Significantly, the order in question provided no provision for the children to spend time with their father. This does not appear to have been an oversight. In addition, at the time, the father had taken no formal part in the proceedings before the court.
At the time of these orders, the court had before it a report from Ms B, who described herself as a multi-cultural mental health nurse practitioner candidate, who had been consulting with the two children through the Child Adolescent and Mental Health Service (CAMHS).
Ms B reported as follows:
“The children are overtly frightened of their father and refer to him only as “the bad man”. Through their play they have been acting out the violence they have witnessed. This is a common way in which children cognitively process their experience of traumatic events. Ms Arena has received telephone calls from the children’s father’s relatives in Country A relaying threats to her life. In particular, she was told that the children’s father would not stop stalking her until he had killed her. The threat of losing the one parent who tried to protect them from their father’s violence is very damaging to the children’s mental health. [X] described his worry as “as high as the roof”, indicating the overwhelming nature of his anxiety. He says he feels responsible for the physical safety of his mother and brother.”
Accordingly, the final order of 24 November 2009 was made in the absence of the father and without any direct involvement from him. Federal Magistrate Mead was satisfied that the father was aware of the proceedings in question. However, it is likely to be the case that he was in custody at the time this final order was made, having been refused bail as a consequence of being charged with breach of a family violence order.
On 29 June 2010, the mother applied to divorce the father. The relevant divorce order was granted on 10 August 2010. This application was served on the father. The mother has since re-married and she and her current husband have two children aged four and two.
On 1 July 2010, the father commenced his own proceedings, in this court, which was then known as the Federal Magistrates Court. He sought orders that the two children live with him. In support of his application, he deposed that he had been in prison during the earlier proceedings and had been unable to put his case.
Underpinning his position was his assertion that he had been labouring under a significant disadvantage because of his misunderstanding of the implications of the family violence order, in respect of which he had received bad advice. It being his understanding that he was precluded from taking any steps to interact with the children because of the order. He had commenced his proceedings on the finalisation of the criminal matters against him.
On 2 July 2010, Federal Magistrate Mead appointed an independent children’s lawyer to represent the interests of [X] and [Y] in the recommenced litigation. At this time, there were also issues arising in respect of how the father’s application was to be brought to the attention of the mother, who had moved to Sydney with [X] and [Y] a few months beforehand.
It being her case that she continued to feel unsafe, in Adelaide, notwithstanding the existence of the family violence order made in her favour. Given the final order, earlier made in her favour, it was her understanding that there was no impediment to her moving interstate.
The mother responded to the father’s application on 3 September 2010. She sought the dismissal of the father’s application. It was her case that both children were terrified of seeing their father [and lived] in constant fear that he will hurt them again.[1]
[1] See mother’s affidavit filed 3 September 2010 at [12]
It was the mother’s case that officers at SAPOL and workers at CAMHS had advised her to move the children interstate given their assessment of the level of the threat represented by the father to the safety of both the mother and the children.
In these difficult circumstances, on 10 August 2010, Federal Magistrate Mead made the following order:
“That the independent children’s lawyer facilitate the preparation of a Family Assessment to be conducted by Dr C or such other Clinical Psychologist as agreed between the parties and the independent children’s lawyer, with the assessment to be directed towards the best interests of the said children [X] and [Y], but in particular as to the issue of what time and under what conditions the children should spend with their father.
That the assessment process only include a period of observed interaction between the said children and their father at the discretion of the expert.
That the report be filed and served by the independent children’s lawyer on or before 12 November 2010 with the costs of same to be shared equally between the parties.”
Dr C’s report was released to the parties in late November of 2010. It was significant at the time of its release and remains so. At the time, Dr C was based in Adelaide. He interviewed the father in Adelaide and travelled to Sydney, where he interviewed the mother and [X], but not [Y] due to his tender years at the time. As a consequence, Dr C was not in a position to observe any direct physical interactions between either child and their father.
In the conclusion to his report, Dr C made the following recommendations:
“An assessment of her [the mother’s] current emotional functioning revealed a range of symptoms consistent with those found in women from backgrounds of domestic violence with, particularly prominent being re-experiencing in the form of intrusive and distressing memories and dreams, and effortful avoidance of those memories. On the basis of her reported history of the marriage, I assess these symptoms as being a consequence of having experienced violence in the marriage, and recommend there be no contact between Mr Reddy and Ms Arena.
[X] similarly reported the presence of memories of his father’s abusive behaviour towards both his mother and himself that he found distressing and which interfered in his ability to concentrate on his schoolwork in class. [X] also reported that he had difficulties falling asleep, bad dreams, and that he heard a male voice in his head telling him he was stupid and couldn’t do things.
An assessment of [X]’s current emotional functioning indicated he fulfilled the criteria for a diagnosis of childhood PTSD, with the results of the TSCC confirming high levels of anxiety and re-experiencing. I assess these symptoms to be real, based on his own experiences of his father’s past behaviour, and recommend there be no contact between [X] and his father at this time. It is also my recommendation that [X] receive some therapy in order to help reduce the intensity of his current symptoms that are adversely impacting upon his day-to-day functioning, but only from a therapist who is familiar with the dynamics of domestic violence and the emotional consequences in children that follow from this.”[2]
[2] See affidavit of Ms D filed 3 December 2010 at annexure B (footnotes deleted)
In early 2011, on the direction of Federal Magistrate Mead, the independent children’s lawyer was asked to inquire of Dr C why he had not elected to interview [Y]. He responded to this inquiry in the following terms:
“… the levels of both the mother’s and [X]’s emotional distress when relating their memories of Mr Reddy’s past behaviour, as indicated by my assessment of their emotional function, tended to give weight to the mother’s descriptions of [Y]’s behaviour, which in turn were supported by concerns for the emotional welfare of both boys by Ms B, CAMHS, in her letter of 23 November 2009.
Given the above, together with [Y]’s young age (5 years), I made the decision not to run the risk of emotionally upsetting him by placing him in the situation of being required to recount memories of his father, particularly in the absence of any follow-up therapeutic support. In addition, I also felt that the consistency between the presentations of both the mother and [X] and the research evidence examining the psychological consequences of living with domestic violence, was sufficient to inform the Court of the current emotional difficulties being experienced by this family.”[3]
[3] See affidavit of Ms D filed 21 January 2011
On 14 June 2011, Federal Magistrate Mead transferred the proceedings to the Family Court of Australia. I am not aware of Her Honour’s reasons in this regard but assume it was due to the complexity of the issues in the case, including the logistical issues arising from the distance between Sydney and Adelaide.
As a consequence of affidavits filed by the independent children’s lawyer, it is apparent that [X] and [Y] had continued to receive psychological counselling, both before and after they left Adelaide. On 30 August 2011, a child psychologist, practising in Sydney, whose identity was concealed in order to safeguard the whereabouts of the mother and children, reported as follows in respect of symptoms then displayed by the children:
“[X]: The symptoms that are currently present centre on nightmares and thoughts of being kidnapped by the father. These bad dreams occur approximately every 4-6 weeks. [X] reported waking up feeling scared his heart racing. [X] knows they are bad dreams but he says that he still gets scared that it will happen in real life. [X] also worries more than usual about incidents in the playground involving his peers. [X] often attributes different meaning to the motives of his peers during disagreements. He mentioned believing that they were being mean to him when he in fact “got out” of a game.
[Y]: [Y]’s main symptoms are physical. He continues to have stomach aches and nausea. [Y] mainly experiences these symptoms at bedtime. He is often soothed to sleep by his mother when he is feeling scared. However, he does not articulate his fears.”[4]
[4] See affidavit of Mr E filed 6 September 2011 – Annexure A
The proceedings before the Family Court did not proceed to a final hearing. The father’s position was and remains that the mother has overstated her allegations of family violence. He further asserts that the mother suffered from significant psychiatric illness during the parties’ marriage.
However, efforts by both parties to secure funding, during the course of the family court proceedings, to obtain forensic psychiatric assessments to shed light on this issue and other issues relating to the aetiology of violence between them proved problematic.
Perhaps, there were also difficulties arising from the fact that the parties were living in different states and were subject to different legal aid considerations. In any event, what is clear from the court record, is that on 12 June 2012, the father elected to discontinue his application. Shortly thereafter, the court finalised the proceedings.
Accordingly, in these circumstances, the final order of Federal Magistrate Mead made on 24 November 2009 remained current. The mother seeks the continuation of this order, which she contends finalised the earlier proceedings in a manner congruent with the children’s best interests – both then and now.
However, it is clear that, notwithstanding the final nature of this order, the court has never taken oral evidence from either the father or the mother and is therefore not in a position to make concluded findings of fact regarding the nature of the parties’ relationship with one another. In addition, the assessment of Dr C has not been subject to any scrutiny through cross-examination and is now many years old.
Essentially, it is the father’s position that there has been a significant change in circumstances since the final orders of November 2009, not the least of which is the significant effluxion of time. He contends that during the last decade, he has significantly changed his life.
On the other hand, the mother contends that there has been no material change, other than whatever relationship the children had with their father has irretrievably deteriorated. It is her case that, in fact, the children’s views about their father and their antipathy for him, remain at the same levels as described by Ms B.
Against this background, it is the father’s position that the feelings of the children, in respect of him, have had ample time to settle. As such, it is now appropriate for the court to consider the benefits, which may derive for the children particularly [Y], from having a meaningful level of relationship with him and, in time, with other members of their paternal family, from whom they have been estranged for a period approaching ten years.
Given the children’s rich cultural inheritance, stemming from their Country A background, he submits it will be beneficial for the children to form some sort of connection to their wider paternal family, many of whom live in Country A and with whom they can communicate with via him but not their mother.
The father’s position
The father commenced the current round of proceedings on 5 July 2018. He required information from Centrelink, which was ultimately provided by means of a Commonwealth Information Order, as to the whereabouts of the mother and children concerned, so his application could be formally served upon her.
In addition to this order, he proposed that the views of the two children concerned be canvassed by means of a child inclusive child dispute resolution conference. This was done on 25 January 2019 by Family Consultant F of the Sydney registry.
At present, the father lives in Adelaide in rented accommodation. He enjoys good health. In Country A, he qualified as a public servant. More recently, to his credit, he has been able to complete the studies necessary to be accredited as a public servant in South Australia. .
It is the father’s case that he has worked assiduously to improve himself in the period since he became estranged from the two children concerned. He asserts that he is a worthwhile and productive member of the community and, as such, cannot be assessed as representing any form of threat to either the children concerned or the mother. In support of this assertion, he has provided his criminal record, which is clear apart from the incidents arising in respect of the mother in 2009.
It is also his case that he has a realistic understanding of what can be achieved in terms of him pursuing a relationship with the children, after so many years and in what must be regarded as extremely difficult circumstances.
As previously indicated, given [X] will be eighteen in a few weeks’ time, he concedes it would not be useful to compel him to do anything. However, he hopes if some form of order is made in respect of [Y], [X] may come along and, in this way, some form of rapprochement brokered between the two.
The father proposes that he have professionally supervised time with [Y] in the central area of Sydney. He proposes that the supervision be provided by an organisation known as Contact Centre, which is based in Suburb G, New South Wales. Contact Centre describes itself as follows:
“Contact Centre is an accredited organisation providing quality, family-based care and specialist support services to children and young people in out-of-home care, and contact supervision and transportation services to children, young people and their families in circumstances associated with family law.”
Contact Centre can provide professional supervision of a child’s time with a parent in a variety of circumstances to ensure that such visits occur safely and whilst being focussed on the wellbeing of any child concerned. The organisation is prepared to undertake supervised time in a variety of venues, including parks; playgrounds; aquariums; cinemas; bowling alleys; and so on and so forth.
Each such session is likely to cost somewhere in the vicinity of $240.00. In addition, the father would have to pay his travel cost to and from Sydney and other administration fees. It is the father’s case that he has saved assiduously to afford the costs of this supervision, which represent a significant financial impost on him. It is implicit in his case that his willingness to incur these significant costs is indicative of his commitment towards the children.
In recognition of the sensitivity of the situation, he is prepared to undertake not to raise any issues, relating to their mother, with either child or make any inquiries regarding her current life or allude to his past relationship with her.
In addition, he has deposed that, in the event [Y] indicates to him, after the end of the first proposed session that he no longer wishes to continue with the process, he will accept the child’s position and will not persist with any subsequent visits, which may have been ordered. However, in this eventuality, he would want the court to make orders directing [Y] attends with him for a process of reunification therapy.
The father envisages that he and [Y] (and perhaps [X]) will have a meal together, under the supervision of an appropriate person from Contact Centre, somewhere convenient in Sydney and talk together, in what he hopes will be a constructive and nonthreatening manner, which will be led by what the children want to talk about. In this context, he deposes as follows:
“…I am interested to find out what kind of young men my sons have become. I want to know how they are performing in school, and what they like to do outside of school. Once I have that information, I plan to structure future supervised sessions around things [Y] likes to do. I want the sessions to be fun and ‘low-stress’ events that he looks forward to in the future.”[5]
[5] See affidavit of the father filed 25 February 2019 at [16]
I acknowledge that the father’s aspirations, in this regard, are both human and understandable. Parents separated from their children yearn to know about them – what they do; above all, what they are like. These emotions, powerful in their nature, do not de-nature over time.
As such, I accept that the father has not brought these proceedings out of any desire to harass or annoy the mother, but has done so for genuine reasons relating to his interest in the children, stemming from his biological relationship with them.
The mother’s position
As previously indicated the mother has re-married. It is her case that her husband is a good role model for [X] and [Y]. Her parents and a brother also live in Sydney. She further asserts that [X] and [Y] have a close relationship, and [X], whom she describes as mature and a good role model for [Y].
[X] completed secondary school last year and is now enrolled in a course at University. The mother’s position is that [X] is adamant he does not wish to re-engage with his father in any way whatsoever. It is the implication of her evidence that [Y], although capable of formulating his own views, is liable to follow his brother’s lead.
During 2018 and prior to the father instigating these proceedings, it is the mother’s case that she became concerned about how [Y] was coping emotionally with the vicissitudes of life, which she attributed to him passing through puberty.
In this context, she arranged for him to have counselling from Mr H, who describes himself as a family counsellor & psychotherapist. Mr H has been seeing [Y], on a monthly basis, since July 2018. Mr H produced a report in respect of his involvement with [Y] in February of 2019. In this report, he opined as follows:
“In my opinion, [Y] is suffering from severe anxiety that relates to his father’s behaviour. In one of our sessions, he said “I saw my father hitting my mum many times at home and in front of strangers”. He still remembers an incident where his mother left home running in the street asking for public help and protection. [Y] mentioned that he and his mother hid at one of the shops for several hours until they felt safe to return home. This incident caused a big trauma in [Y]’s life. Another memorable occurrence involved the father hitting the mother at home where she was crying and sad for a long time afterwards. He said, “I wish I was strong and old enough to stop him from hurting her”.
His anxiety was improving, and he was progressing well in the sessions. His school reports also indicates that he has improved a lot. This improvement started to decline when the father requested, through the court, to have visitation rights to see [Y]. He relapsed and because very angry at home and at school where he cannot concentrate in the classroom. [Y] stated that he feels powerless and wishes for the court to hear his voice and respect his wishes of not seeing the father. [Y]’s anxiety increases with the mention of his father seeing or even be in contact with him.”[6]
[6] See annexure B to the affidavit of Mr H filed 5 March 2019
Mr H does not recommend that [Y] should be compelled to spend time with his father and believes that such an outcome would be potentially deleterious to his psychological health. Needless to say the mother agrees with this assessment.
I appreciate that the overall objectivity of Mr H and the methodology adopted by him in assessing [Y] remains untested. In particular, the extent of [Y]’s personal memories of his father and what he idiosyncratically remembers of his parents’ separation may be controversial. In this context, it may well be suggested to him that [Y]’s memories may well have been influenced or even created by what his mother and older brother have told him and it is these factors which have caused him to have an adverse view of his father.
As such, Mr H’s opinion may conceivably be regarded as being biased and the process by which he reached his conclusion judged to be flawed. However, in my view, it remains the case that the court must still consider whether it is likely to be in [Y]’s best interests to allow the proceedings to continue, within the context of the significant period of time which has elapsed and the significant degree of conflict between the maternal and paternal aspects of the family.
More recently again, the mother has arranged for [Y] to be provided with a mental health plan through the agency of his general medical practitioner. This has resulted in him receiving counselling at headspace Suburb J. His last appointment occurred after the instigation of the current proceedings. In this context, it was reported as follows:
“During his last appointment [Y]’s affect was upset and angry with low mood. He reported that he was distressed by current court proceedings in which he reported his views pertaining to his biological father may be dismissed and/ or minimised due to his age.”[7]
[7] See annexure A to the mother’s affidavit filed 5 March 2019
The mother has deposed that [Y] has indicated to her that he does not wish to spend even brief periods of time with his father and in this context she asserts that [Y] “becomes very angry, teary and distressed at the thought of being forced to spend time” with his father.
The child inclusive conference memorandum
Family Consultant Ms F conducted the child inclusive conference on 25 January 2019 and provided the following summary of what [X] and [Y] said to her:
“[X] ([X]) (aged 17 years, 5 months) presents as a thoughtful and mature young man. [X] reported that he is going to commence studying this year at University. [X] said he is hoping to become a …, therefore he is undertaking a course before applying to ... [X] says that he likes film making with his friends.
[X] appears to have a loving and generally positive relationship with Ms Arena, saying that Ms Arena “is the nicest person I know.” [X] said that he loves his little sisters ([K] and [L]) and that he has a good relationship with his step-father, Mr Arena. [X] reported that he attends counselling at Headspace and that this helps him by giving him a place to talk about what happened in his past.
[X] said that he has not had any contact with Mr Reddy since 2009, nor was he looking to have any contact in the future. [X] said that, when living in Country A, Mr Reddy would “beat” him and his brother, [Y], “almost every day.” [X] said that for him and any child living in the Country A community this was a “part of everyday life.” [X] reported that when the family moved to Australia he “slowly realised that getting hit was not normal,” however [X] said the violence continued “happening more often and more intense.”
When asked about spending time with, or speaking to Mr Reddy, by the Family Consulant, [X] said that he would not like to spend any time with him, nor talk to him in the future.
[Y] (aged 13 years, 8 months) presents as a quiet, thoughtful child. [Y] said he is in Year 8 at school and he is looking forward to returning to school. [Y] says that he likes to read, especially science fiction and adventure.
[Y] appears to have a loving and generally positive relationship with Ms Arena. [Y] said that Ms Arena is his “guardian and advisor” and that Ms Arena “has taken care of me for my entire life.” [Y] says that he has a good relationship with Mr Arena. [X] reported that when he was younger he was “pretty scared of people and not eating due to trauma” and it was Mr Arena who “encouraged me to eat and talk to people.” [Y] said that his sisters are “far too energetic, cheeky, crazy, but really cute.”
[Y] reported that he does not have a relationship with Mr Reddy and that he last saw him “nine years ago.” When the Family Consultant asked [Y] about the proposals of both Ms Arena and Mr Reddy, [Y] said he “definitely agrees with (Ms Arena’s) proposal.” Further, [Y] said that Mr Reddy had “broken (his) trust, what he did is still terrifying to me.” [Y] said that he did not want to have any contact, nor spend time with Mr Reddy.”[8]
[8] See Child Inclusive Conference Memorandum to Court dated 29 January 2019
In summary, the family consultant was of the view that [X] and [Y] presented as being strongly aligned with their mother. Given his age, she considered that [X] views, as expressed to her, should be accommodated. She considered that the issue of whether the children’s obvious estrangement from their father was a consequence of their own experience of him or due to some other factor or factors was a matter of evidence.
Significantly, in my view, Family Consultant Ms F considered, on the basis of [Y]’s presentation to her, that it was likely [Y] would experience difficulty if orders were made compelling him to spend time with his father. In this context, she recommended if the court concluded that some time should occur it should happen at a Children’s Contact Centre.
In respect of the future management of the case, Family Consultant Ms F was of the view, given the empathetic views expressed by [Y] that it would not be useful to commission a more detailed family report at this stage. The underpinning of this recommendation apparently being that it was likely to be counter-productive for his views to be re-canvassed so soon after he had expressed them to her.
Accordingly, she recommended that, if the court did consider a report was required, it should only be compiled in the event that [Y] did begin to spend time with his father. Essentially, this is the nub of the father’s case. He hopes that, if the court does order some modest time between him and [Y], it will go well and this, in effect, will shift [Y]’s highly negative view of him.
Accordingly the orders sought by the father can be described as being experimental in nature. He wishes the court to make an order for supervised time in order to see whether it will result in the prospect of some form of rapprochement developing between him and [Y] notwithstanding the lack of propitious circumstances in this regard.
This leads to the central issue for the court, at this stage. Given the incontrovertible factual issues arising in the case – the lengthy effluxion of time since [Y] interacted with his father and the child’s strongly expressed antipathy for his father – what is the likelihood of [Y] shifting his views and, in this context, what are the possible consequences, in terms of his best interests, of compelling him to take part in a process in which he has empathetically stated he has no interest in being involved.
Inextricably bound up with the resolution of these issues is the fact that the court is called upon to determine the matter provisionally, without being able to conduct a detailed assessment of the respective credibility of each of the parties.
It is asked to do so in order to prevent the potential emotional turmoil likely to be experienced by both the mother and indeed [Y] arising from proceedings, which on an objective level, the mother would characterise as futile in the sense they are unlikely to achieve the outcome sought by the father, namely some form of reconciliation with the children from whom he has been estranged for close to a decade.
The court is called to undertake this exercise in the context of a truncated interim hearing, which necessarily precludes the taking of extensive evidence. However, notwithstanding such deficits it must still remain focussed on the best interests of the child concerned in the case before it. As such, it may not be congruent with such interests to allow an unmeritorious case to proceed in the perhaps vain hope that something may turn up by allowing it to proceed to final hearing.
Legal principles applicable
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this case, the parties approach the difficult issues arising in this case from one of these poles. The father emphasises possible benefits, arising for [Y], of developing a sense of who is father is through direct interaction with him and where he ([Y]) personally fits in within the broader aspects of his paternal family, including those who live in Country A.
The mother emphasises the need to protect [Y] from psychological harm from being exposed to a parent who has demonstrably engaged in family violence with, on her case, the consequence of the relevant children suffering various kinds of emotional harm as described in the various reports obtained on her behalf.
When the applicable legislation was originally inaugurated, these considerations were not formally ranked in regards to one another. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
No doubt the father points to the various rights outlined in section 60B(2) in support of his case. He contends that it remains [Y]’s right to have some form of paternal relationship notwithstanding the dire state of relations between him and the mother. Another important plank of his case is [Y]’s entitlement to have exposure to aspects of his Country A background as embodied in his paternal family, from whom he is currently estranged.
Other criteria, relating to how a Court is directed to consider how the best interests of any child concerned may be served by any order which the Court makes, are set out in section 60CC(3). These criteria are categorised as additional considerations.
There are fourteen such criteria, including, pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance which it considers relevant. This is to ensure that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
The additional considerations include such matters as:
·any views of the children concerned, subject to their maturity and other factors, which may be influencing such views;
·the nature of the children’s relationship with parents and other significant individuals;
·the extent to which a parent has participated in decision-making, spending time and communicating with the relevant children;
·issues relating to the financial support of the children;
·the likely effect of any change in the circumstances of the children concerned;
·the practical implications of proposed contact arrangements;
·cultural issues, particularly in the context of children enjoying aspects of their cultural background with relatives who also share it; and
·any family violence involving the child or a member of the child’s family.
It is a central plank of the mother’s case that both children have expressed a strong view to Family Consultant Ms F and indeed other counsellors with whom they have been involved that they do not wish to engage with their father.
It is necessary for the court to examine the evidence currently available, relating to this issue and indeed others of the additional considerations, to assess whether it is appropriate to dismiss the father’s application, at this stage, without making the experimental order sought by him.
It is extremely unlikely that I personally will engage with [Y] to make my own assessment regarding the validity of his views in respect of his father. Accordingly, the court will be reliant on the assessments of others in this regard. At this stage, I have no reason to doubt the validity of Family Consultant Ms F’s reporting of [Y]’s views or the methodology by which she obtained them.
Over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Such rights are likely to become more compelling the more mature a child is. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[9]
[9] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[10]
[10] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
[Y] was nearly fourteen at the time of interview. Family Consultant Ms F did not indicate that he was lacking in maturity. Rather, she described him as being a thoughtful child, who liked books. The factor which [Y] ascribed to not wanting to engage with his father included that he did not trust him and had not seen him for nine years.
That [Y] has not engaged with his father for nine years is not in contest. In these circumstances, the lack of trust [Y] expressed in his father cannot be regarded as being surprising. Both the mother and [X] have expressed a significant level of antipathy for the father, as a consequence of their personal experience of him, albeit many years ago.
Even if [Y]’s own recollections of what occurred in June of 2009 are hazy and unreliable, it would be naïve to consider that what impressions he has of that time are not influenced by his mother and older brother. [Y]’s most significant relationships are with them and his two younger siblings and his step-father. He has no relationship with his father.
In these circumstances, in my view, it would be fraught with risk for the court to disregard [Y]’s unequivocal views as expressed to the family consultant. His views cannot be regarded as irrational or unreasonable. In large part they stem from the fact that the father disengaged from pursuing any form of relationship with him many years ago.
No doubt, the father feels bitter at the circumstances surrounding the mother’s relocation to Sydney and what he perceives were the unfair barriers placed in the way of him pursuing any form of relationship with the children, when he recommenced the proceedings in 2010, leading to his discontinuing his case. However, the fact remains the father has not played an active role in any way whatsoever in the children’s lives for many, many years.
In this context, the court must assess both the possible benefits and the possible deficits arising from the court attempting to see if the relevant relationship can be revived. These considerations arise in the matrix of the court’s responsibility to assess the likely consequences of change in care arrangements for a child.
The mother has provided evidence, particularly from Mr H and headspace regarding the possibility that [Y] will react badly if compelled to interact with his father against his wishes. It is possible that he may be resentful if he perceives that his professed views have no currency and are, in effect, disregarded. Given his age, these are factors which, in my view, should not be underestimated.
On balance, the possibility of [Y] being resentful, angry and resistant to spending time with his father seems a more probable outcome than that he becomes receptive and embracing of the overtures emanating from his father. I acknowledge that it is impossible for me to determine definitively what the child’s reaction will be to his father. That after all is the nature of any experiment.
However, in my view, it is incumbent on the court to make some sort of assessment of the degree of risk arising from such an experiment. In Deiter & Deiter,[11] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[11] See Deiter & Deiter [2011] FamCAFC 82
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[12]
[12] Slater & Light [2013] FamCAFC 4 at [37]
In objective terms, I accept that [Y] will be physically safe if he interacts with his father in some public location in central Sydney in the presence of a professional supervisor from Contact Centre. However, these safeguards alone may not protect the child from the emotional sequellae arising from him being compelled to take part in a process against his will. In addition, the child’s resistance to such a process cannot be regarded as a promising harbinger of its success. The central question remains: what will such an intervention achieve and at what emotional cost.
The court is required to give significant emphasis to issues of family violence. It is the mother’s case that both [X] and [Y] have been exposed to family violence in the sense envisaged by the applicable legislation.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
Again, the legislature has provided a list of examples which may constitute the exposure of a child to family violence. They include the following:
·Overhearing threats of death or personal injury by a family member towards another member of the child’s family;
·Seeing or hearing an assault of a member of the child’s family by another family member;
·Being exposed to the sequellae of such an assault, including police involvement.
It is clear that both children were exposed to family violence in June of 2009, although it may be arguable that the emotional consequence of this exposure has faded overtime, particularly insofar as [Y] is concerned. That is not likely to be the case for the mother herself. Section 60CC(3)(j) directs the court to consider any family violence involving a member of the child’s family.
It is the mother’s case that she instituted the initial proceedings, which resulted in the relevant final order, because of family violence. In addition, she contends that she moved with the children to Sydney because of concerns about her safety. As such, significant issues of family violence remain current. These issues, which seem to continue to resonate strongly for both the mother and [X], are likely to be influential in the likelihood of any re-introduction between [Y] and his father being successful.
Neither the mother nor [X] are likely to be supportive of such a process. As previously indicated, there can be little doubt that they are the individuals most significant to [Y] at this stage of his development as a young adult. To the family consultant, [Y] referred to his mother as his guardian and advisor. As such, it is highly probable that it will be extremely difficult for [Y] to willingly involve himself in a process to which she is so fervently opposed.
Accordingly, as the evidence currently stands, untested as it is, the prospects of the experiment involving the introduction of [Y] to the father being unsuccessful seem more probable than otherwise. In addition, the risk of the child reacting badly to the process seems to be reasonably significant.
Given these are child-related proceedings [see section 69ZM] it seems clear that the court has authority to dispose of these proceedings summarily. In so doing, it should be mindful of the various principles set out in section 69ZN. Significantly the court is directed to consider the impact of the conduct of the proceedings on the child concerned.
If the proceedings are conducted in the manner advocated by the father – a process of supervised time and, if this is unsuccessful, an as yet unspecified process of reunification counselling – the proceedings have the potential to be both difficult emotionally for [Y] and protracted for all concerned. As such, in my assessment, there is the potential for the conduct of the proceedings to impact adversely on [Y].
In addition, the court has other avenues available to it to dismiss proceedings at an early stage. Mr Cummings, counsel for the father, submits that the mother has only pleaded one such avenue and that therefore dismissal pursuant to what lawyers refer to as the rule in Rice & Asplund is not available.
The rule is an expression of the paramountcy principle. In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration. As the circumstances of the parties change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
However, some degree of change is a necessary corollary of life and should not of itself allow final parenting orders to be easily revisited. Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.[13]
[13] See Rice & Asplund (1979) FLC 90-725
The primary purpose of the rule in Rice & Asplund is to prevent “endless litigation”[14] and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”.[15]
[14] See Rice & Asplund (supra) per Evatt CJ at 78,905
[15] See SPS & PLS [2008] FamCAFC 16 at [56]
Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[16]
[16] Ibid at [58]
Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children.
It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[17]
[17] See CDJ v VAJ (1998) FLC 92-828 at 85,449
In this context, it has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”[18] The litigation, in this case, has been protracted, expensive and time consuming.
[18] See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS (supra) per Warnick J at [57]
In this case there is a final order made in respect of both [X] and [Y]. It was made a significant period of time ago; in the period since there has not been a significant level of litigation between the parties. In addition, other than the children have matured, there has not been any great change in their circumstances – they have remained living with their mother and estranged from their father due to the mother’s concerns about family violence.
It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[19]
[19] See Bennett & Bennett (1991) FLC 92-191 at 78,262
However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage. If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[20]
[20] See SPS & PLS (supra) at [59]-[60]
These concerns exist in the present case. The mother urges caution in allowing the proceedings to continue because she fears adverse consequences emotionally, for [Y], if he is compelled to take part in a process of supervised time with his father and, if this fails, in a process of reunification counselling on the basis that [Y] is fervently opposed to either such intervention or indeed having any form of relationship with his father. Accordingly, it may be counter to [Y]’s best interests for the court to countenance what it assesses to be a risky intervention, with limited chances of success purely on the basis of a hope that it may be successful and some form of relationship created between father and child.
In my view, this is the nub of the case, which must be determined primarily by what the court considers to be in [Y]’s best interests, after it has assessed the applicable section 60CC factors. In this context, it may be a matter of legal semantics if the case is dismissed according to the principles collected under the rubric of Rice & Asplund or on a summary basis.
Given that the court will often be called upon to apply the principal expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage. It is not a rule which is to be applied formulaically.
Rather, the court must examine the evidence available and determine whether, at its highest and without determining its veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing.
Warnick J put it as follows:
“…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”[21]
[21] Ibid at [81]
It will frequently be the case that there is much controversy between the parties concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975.
The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation.
In arriving at its decision, the court must look to the following matters:
·the importance or seriousness of the issues raised, both individually and where necessary collectively;
·the impact that the issues are likely to have on the best interests of the children concerned;
·whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.[22]
[22] See Marsden v Winch (2009) 42 Fam LR 1
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.
That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change.[23]
[23] See King & Finneran (2001) FLC 93-079 at 88,367
In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry. In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.[24]
[24] Ibid at [84]
The other route by which the court may take to dismiss a case prior to any full canvassing of evidence is via an application for summary dismissal. As previously indicated, it is Mr Cummings’ contention that the mother’s legal advisers are precluded from relying on any avenue other than this one as they have not specifically alluded to the principles delineated in Rice & Asplund in the amended response filed on 1 February 2019. This is so.
In these circumstances, it is necessary for me to set out, as best I can, the provisions, which are applicable to summary dismissal. However, in my view, given the provisions of Division 12A, it remains a moot point whether the court retains a discretion to dismiss an application on other bases particularly those related to its overall assessment of any applicable best interest considerations relating to a child.
Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides as follows:
“(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”
Rule 13.10 of the Federal Circuit Court Rules 2001 reads as follows:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.”
Section 118 of the Family Law Act reads as follows:
“The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a)dismiss the proceedings; and
(b)make such order as to costs as the court considers just.”
Section 17A of the Federal Circuit Court Act is in similar terms to section 31A of the Federal Court Act 1976. In Spencer v The Commonwealth of Australia French CJ and Gummow J said that the section:
“… authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.”
The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[25] The case “must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … by the court …”[26]
[25] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400 per Weinberg J at 415 [12]
[26] See Dey v Victorian Railway Commissioners (1949) 78 CLR 62
In Webster v Lampard[27] the High Court said as follows:
“The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.”
[27] See Webster v Lampard (1993) 177 CLR 598 at 602
In McKellar, Weinberg J, after summarising the various authorities, relating to summary dismissal, said as follows:
“… a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.”[28]
[28] Ibid at 416 [18]
In this context, I also bear in mind what was said by Kirby J in Lindon v The Commonwealth (No 2):
“An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination… Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently uncompromising cause into a successful judgment…”[29]
[29] See Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 cited in Bigg v Suzi (1998) FLC 92-799 at 84,975
In Przbylowski v Australian Human Rights Commission (No 2)[30] Perry J considered that section 31A set a lower threshold than previous tests for summary dismissal, which required cases to be manifestly groundless or hopeless before they warranted dismissal. Whilst bearing in mind the need for caution, Her Honour indicated that the exercise of discretion under section 31A involved the making of value judgements in the absence of a full and complete factual matrix and argument.
[30] Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7]
In this context, Perry J endorsed the following comments of Reeves J in Australian Securities and Investment Commission v Cassimatis:[31]
“…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.”
[31] Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256 at [46]
In exercising this practical judgment a demonstration that an aspect of a case that relied on the establishment of a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all available documents or evidence was likely to be central in whether that case should be summarily dismissed. To the contrary, a case which raised a real question of fact of a substantial, plausible or weighty nature should not be so dismissed.
In the current matter, the father is not in a position to dispute that [Y] is estranged from him. How could it be otherwise given the undisputed fact that the two have not interacted with one another for close to a decade, during the majority of which period the father, whether advisedly or not, elected not to pursue the issue.
It is in this context that the court must conduct some form of prognostications regarding the outcome of the interventions sought by the father to restore some form of relationship between him and [Y]. That such a process will be beset by pitfalls cannot be doubted. Not the least of these pitfalls is the opposition of [Y] himself, closely followed by the lack of support likely to be provided by the mother and [X], who share a significant level of antipathy for the father.
I concede that there is a prospect that, upon meeting the father, [Y] will experience an about face in respect of what has hitherto been his attitude towards and perception of his father. However, such a reaction does not appear to me to be either plausible or likely. To the contrary, given the circumstances of the case, it seems both implausible and unlikely.
The loss of a paternal relationship for [Y] must be regarded as a significant factor, given the structure of the Family Law Act. However the issue to be determined in this case is not that simpliciter. Rather the court’s responsibility is to assess possible benefits accruing to [Y], from such a relationship being restored.
As a consequence of what has happened since 2009, it is incontrovertible that a meaningful level of relationship between [Y] and his father has been long extinguished. As such [Y] has not derived any benefits from having a father for a significant period of time. His current position is apparently that he does not personally wish to examine whether any such benefits will come to him. It is implicit in what he said to Ms F that currently he can conceive of no such benefits.
The issue for the court is therefore whether it is in [Y]’s best interests for there to be an exploration of whether this relationship can be viably restored in what must be regarded as extremely unconducive circumstances. This requires the court to make value judgements regarding the outcome of this process and also its potential emotional impact on [Y] himself and indeed on those around him, including his mother, who is his unchallenged primary provider of care.
The father’s case relies on something positive coming out of any initial court ordered interaction between him and [Y]. The court, through the agency of Family Consultant Ms F has already put in place an intervention designed to gauge what is the likelihood of success of such a process in practical terms. Ms F’s assessment does not provide any grounds for the court to be sanguine that something will indeed turn up. In my assessment, the likelihood of something negative occurring is far more probable, given the strength of [Y]’s convictions in the matter.
For a case to be summarily dismissed, it is not necessary for a party to establish that the case is hopeless in the sense that it is incontrovertible it will fail. In this context, as I have already indicated, no-one can definitively predict how any human being will react in any particular circumstance. Accordingly, it is possible that, when faced with the corporeal reality of his father, [Y] may react positively and become engaged with him.
But for the reasons already provided, in my practical assessment, this appears highly unlikely to such an extent that it appears to me that the applicant has no reasonable prospects of success in terms of re-kindling any form of beneficial relationship with [Y], given the depth of the estrangement involved, in these adversarial court based proceedings.
More significantly, given my assessment of the relevant section 60CC factors, albeit one conducted on the basis of untested evidence, I do not consider that to being in the process envisaged by the father, which I have assessed as having limited prospects of success, can be considered to be in [Y]’s best interests.
In any proceedings arising under Part VII of the Act the best interests of the child concerned remain the paramount consideration. Given [Y]’s age, his views must be accorded some significant weight. For obvious reasons, they are also likely to be a strongly predicative factor in respect of the probability of the father’s proposal being successfully implemented.
[Y]’s views have been canvassed and are currently unequivocal. He is aligned with his mother, whom he regards as his trusted guardian. She is strongly adverse to [Y] resuming any form of relationship with his father, as is the other major influence in [Y]’s life, his older brother [X], who is close to attaining his majority.
Close to ten years have passed since the father last interacted with the children. During this period he has not agitated to be reinstated into their lives. Time does not seem to have been a factor in leading to any improvement in the level of trust between the father and mother.
In my summation, no section 60CC factor points to the father’s proceedings having any utility so far as the service of [Y]’s best interests is concerned. At the end of this exercise, I have come to the conclusion that he is unlikely to derive any benefit from being forced compulsorily to interact with his father.
The Federal Circuit Court, in the conduct of child-related proceedings, is not to be regarded as a court of strict pleading, particularly given its directive to proceed with as little formality, and legal technicality and form, as possible [section 69ZN(7)].
In this context, although I have elected to proceed along the lines of summary dismissal, I must be careful not to become re-occupied with the identification of the exact legal hook on which the decision hangs. Fundamentally, as in all cases to do with children, including those which turn on Rice & Asplund considerations, the court must make the orders which it considers will be in the best interests of the children concerned in the particular case before it.
In all the circumstances of this case, in my assessment, in order to secure the best interests of [Y], I am left with no realistic alternative other than to dismiss the father’s application. Essentially, in my view, it would not assist in the advancement of those interests to allow the case to proceed on what I have assessed to be a forlorn expectation that something positive will come out of the process which the father proposes.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 7 June 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Summary Judgment
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