Rogers and Landon (No.2)
[2017] FCCA 2997
•5 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROGERS & LANDON (No.2) | [2017] FCCA 2997 |
| Catchwords: FAMILY LAW – Parenting matter – application for summary dismissal – application granted. |
| Legislation: Family Law Act 1975 (as amended), ss.60B, 60CA, 60CC(2) & (3) Federal Circuit Court Rules 2001 (as amended), r.13.10 |
| Cases cited: White Industries Australia Limited v Commissioner of Taxation [2007] FCA511 Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA157 |
| Applicant: | MR ROGERS |
| Respondent: | MS LANDON |
| File Number: | ADC 1536 of 2007 |
| Judgment of: | Judge Mead |
| Hearing date: | 7 September 2016 |
| Date of Last Submission: | 7 September 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 5 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Ms T. Hume |
| Solicitors for the Respondent: | Tessa Hume |
| Counsel for the Independent Children's Lawyer: | Mrs V. West |
| Solicitors for the Independent Children’s Lawyer: | Legal Services Commission of South Australia |
ORDERS
That all previous parenting orders made herein be discharged.
That the mother have sole parental responsibility for the child X born (omitted) 2003 (“X”).
That X live with the mother.
That X spend time with and communicate with her father at her discretion in consultation with her mother and her father or her paternal family.
That the application filed herein on 13 January 2015, the response filed herein on 30 January 2015 and the application in a case filed herein on 2 December 2015 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rogers & Landon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1536 of 2007
| MR ROGERS |
Applicant
And
| MS LANDON |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern X who was born on (omitted) 2003. Her parents commenced litigation in 2007 and it is on-going.
By judgment delivered on 4 April 2014 parenting orders with respect to X were made, which orders were intended to be final. Unfortunately for X that has not turned out to be the case.
On 13 January 2015 the father filed further proceedings seeking the delivery up of X to him. These proceedings were ultimately listed for trial on 7 September 2016.
On 2 December 2015 the respondent mother filed an application in a case seeking summary dismissal of the father’s application. It is that application to which these reasons relate.
The Law
Summary judgments in the Federal Circuit Court, including orders for summary dismissal, are determined in accordance with the provisions of section 17A of the Federal Circuit Court Act 1999 (as amended) and Rule 13.07 of the Federal Circuit Court Rules.
Section 17A of the Federal Circuit Court Act 1999 (as amended) is in the following terms:
Section 17A(1):
The Federal Circuit Court 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.
Section 17A(2)
The Federal Circuit Court 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.
Section 17A(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.
Section 17A(4)
This section does not limit any powers that the Federal Circuit Court has apart from this section.
Rule 13.10 of the Federal Circuit Court Rules provides 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.
The power granted to the Federal Circuit Court to deliver summary judgment is akin to that conferred on the Federal Court by virtue of section 31(A) of the Federal Court of Australia Act 1976 (as amended).[1]
[1] White Industries Australia Limited v Commissioner of Taxation [2007] FCA511
Federal Magistrate Driver (as he then was) considered the various Federal Court authorities on the issue of summary dismissal in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157.
At paragraph 30 of his judgment His Honour set out the principles that he determined he would apply. In doing so he followed the reasoning adopted by Jacobsen J in Commonwealth Bank of Australia v ACN 000247601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at paragraphs 30 to 33.
In that passage of his judgment His Honour in turn referred to a review of the authorities by Rares J in Boston Commercial Service Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) FCA 1352. The principles to which Driver FM (as he was) referred were as follows:
“In assessing whether there are reasonable prospects of success on an Application or Response, the court must be cautious not to do an injustice by Summary Judgment or Summary Dismissal,
There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom Summary Judgment or Summary Dismissal is sought to succeed at the final hearing,
Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects,
Unless only one conclusion can be said to be reasonable the discretion under section 17A cannot be enlivened,
The court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant.”
Background
On 4 April 2014 the court delivered judgment with respect to the mother’s application to vary a long-term equal shared parenting time order. The effect of the orders were that the mother’s application was unsuccessful and the court determined, notwithstanding the very high level of difficulty in communication between the parents, that it was in X’s best interests for there to be an order for equal shared parental responsibility and for the order for equal shared parenting time to continue.
The judgment referred to an earlier parenting order of 9 October 2006, and in paragraph 128 of the judgment the court found that X’s best interests would be met by as few changes as possible to that earlier order.
The court also said in that paragraph:
“Nevertheless, it would be abundantly clear to both parties that my finding as to X’s best interests at this time being met by a continuation of the order for equal shared parental responsibility and equal shared parenting time would inevitably change if the issues raised in this judgment are not addressed by the parties as so strongly recommended by Dr C.”
Dr C prepared three reports for the purpose of the earlier proceedings. It was a common feature of his recommendations that the parties needed to significantly improve their level of cooperation and communication for X’s sake.
At that time Dr C’s overall recommendation was that X’s best interests would be met by maintaining the week-about care arrangements notwithstanding the myriad of problems that arose in relation to communication between the parties and their different parenting styles.
In paragraph 68 of the judgment the court recorded Dr C concern as follows:
“He was concerned that neither party had appeared to put any great effort or thought into recognising the value of establishing a civil and workable communication between them and that he was aware they had not ended up consulting with the recommended psychologist Ms M. It was his view that if they did not do so and continued their dysfunctional level of communication they would be presenting X:
“with an emotional challenge she could well do without, especially given her proclivity towards having significant behavioural and emotional difficulties.””
In X’s various discussions with Dr C, she referred to her concern on occasions when seeing her parents together (paragraph 35 of the judgment), to different parenting approaches in relation to bedtime (paragraph 36), to getting naughty at her fathers and her father getting cross and perhaps yelling at her (paragraphs 37) and to her parents both being fine but “dad lets me go a bit.” (Paragraph 38 of the judgment).
X told Dr C that she did not want to have the equal shared parenting time arrangement changed (paragraph 39 of the judgment) and further, that she did not know who to trust anymore and was confused because of getting different messages from each of her parents, which she described to Dr C as “it makes me feel icky” (paragraph 20 of the judgement).
She told Dr C that she did not have favourites and would be a bit upset, miss her father and feel a bit lonely if she spent less time with him.
On page ten of Dr C first report (paragraph 54 of the judgment) he said the following:
“I wish to point out that the father may be prone to underestimate the transparency of his resentment and disdain towards the mother, though a great deal of this may arise at present from his frustration at being swept into this whole legal process. He also may not realise how imposing his covertly aggressive manner may be to others. Finally, he appears to downplay the emotional and social difficulties X experiences at school, so a more sensitive approach to these issues may assist her in the future.”
Of note the order of 4 April 2014 contained a provision restraining the parties from consuming non-prescribed prescription drugs for a period of twenty-four hours prior to and during any period of time X was to spend with them.
X continued to spend time with each of her parents pursuant to the terms of that order until just prior to Christmas in 2014. On or about 11 and 12 December 2014 X returned to the care of the mother having spent the previous week with her father.
It is common ground that she was due to return back to the care of the father on or about 21 December 2014 but that she did not do so. At the time of the hearing of this application she had not returned to his care.
On 13 January 2015 the father filed an application seeking an urgent ex-parte hearing, an order that the mother immediately deliver X into his care and that in the event of her failure so to do a recovery issue with respect to the child.
He deposed in his supporting affidavit to the mother refusing to return X on 21 December 2014. He also referred to concerns that the mother intended to travel overseas with X to (country omitted) to attend a wedding and he expressed a concern that the mother and her partner may relocate overseas with X.
The application was made returnable for 19 January 2015. On that occasion Judge Cole made an order on an ex-parte basis restraining the parties from removing X from the Commonwealth of Australia and requesting that her name be placed on the Australian Federal Police Airport Watchlist. His Honour also ordered that the mother be served with the application and adjourned further hearing to 2 February 2015.
The mother was not served with the application until 27 January 2015 but was able to file responding documents prior to the hearing on 2 February 2015.
The court made orders enabling the mother to travel overseas with X for a wedding but ordered that within 48 hours of their return to South Australia, X’s passport be lodged at the Registry of the Federal Circuit Court. The previous orders of 19 January 2015 were discharged and an Independent Children’s Lawyer was ordered with a request that Mr Kent, who had previously filled that role in earlier proceedings, be reappointed.
The mother filed an affidavit in support of her response. She deposed to X spontaneously telling her on 13 December 2014 that she did not want to return to her father’s care the following week and when asked why not she allegedly told the mother:
a)That the previous week the father has been abusive towards her because her room was untidy and that he had said to her words to the effect of “Ill punch you in the face to teach you a lesson”.
b)That when that threat was made to X, the father was physically close to X and acting in an aggressive manner.
c)That she was frightened of the father and did not presently wish to return to his care.
d)That her father has a room located at the rear of his house which was usually locked into which she was not usually permitted to enter;
e)That on one occasion the door was left unlocked enabling X to enter.
f)X stated that her father was “growing dope” and then described to her mother a hydroponic drug growing room containing some six to nine marijuana plants.
g)That X also allegedly disclosed to her that the father kept a “pillow” of some sort in her bedroom not being a pillow that she slept on but which was kept in her bedroom by the father and covered with two separate pillowcases.
h)That the father had recently told her to leave her bedroom, he had then gone in and then left the room holding a zip-lock bag containing several $100.00 notes.
i)Her father is often angry and aggressive, smashing objects and punching doors in her presence, which causes her to fear her father.
Prior to the hearing in 26 February 2015 at 10:00am the Independent Children’s Lawyer had, in accordance with the order of 2 February 2015, met with X.
Counsel for the Independent Children’s Lawyer supported the mother’s position at the hearing on 26 February 2015 that the court should, during the period of the adjournment, suspend all existing orders providing for X to spend time with and communicate with her father.
The court made that order, and further ordered that Dr C provide a Family Assessment Report. The matter was adjourned to 9 June 2015.
On that date the court noted that the parties were agreed in principle as to orders including reunification counselling with Ms A and random drug testing. The matter was further adjourned to 11 June 2015 for consent orders to be tendered.
After a further adjournment on 11 June 2015, court orders were made by consent on 22 June 2016 providing for a continuation of the orders for suspension of X’s time with her father and providing for X to commence attendance upon Ms A for the purposes of reunification counselling.
The order further provided for each of the parties to undergo a random drug analysis test during the period of the adjournment, for the Independent Children’s Lawyer to obtain a report from Ms A as to her view of paragraph 3 of the recommendation of Dr C in his report dated 4 June 2015 and further for the mother to request a mental health plan to assist with a reduction of the cost of therapy.
It further provided for the mother to facilitate X attending upon the paternal grandparents for the purpose of spending time as agreed between the mother and the paternal grandparents, provided that the father should not attend at his parents’ home while X was visiting with them unless the parents agreed on that course of action and subject to X’s wishes at all times. The matter was adjourned to 25 August 2015.
By the time of the hearing on 25 August 2015 before Judge Dunkley further affidavits had been filed by the father on 26 May 2015 and the mother on 3 June 2015.
In the father’s further affidavit filed 26 May 2015 he expressed concern as to how the mother had enrolled X in the (omitted) Primary School and denied all allegations of the mother in respect to him perpetrating family violence against X. He deposed in paragraph 23 of that affidavit as follows:
“The child and I have a wonderful and good humoured relationship and sometimes in jest or playful banter we would say to each other “punch in the head”. This is the way we communicate, but I have never said or threatened that I would punch her in the face.”
The father annexed copies of two pieces of loving communication received by him from X and alleged that the mother had hit both the child and he during the course of the parties relationship. He alleged he had obtained a domestic violence restraining order against the mother in July 20016 and that X had “demonstrated an on-going behaviour of hitting me over the years” which matters were both raised in paragraphs 26 and 27 of the father’s affidavit.
The father deposed to X’s hitting behaviours towards him improving over the months leading up to judgment in 2014 but to her behaviour deteriorating again in or about November 2014.
The father deposed to not accepting any assertion on the part of the mother that X was fearful of him but conceded in the week prior to X remaining in the mother’s care he had reminded her, as he had on previous occasions, to keep her room tidy in circumstances where he deposed to X being “prone to letting her room get messy from time to time”.
He deposed to X not only not having on-going contact with him but also her extended paternal family, and he annexed correspondence purportedly from X to her paternal grandfather. He said in paragraph 33 of the affidavit that this was reflective of “the child’s close and trusting bond and relationship with her grandmother…”.
The text of that letter from X to her paternal grandparents was as follows:
“I am very sorry that I cant talk to you in person right now because of what is happening and also because I feel embarrassed to talk to you. I have made this choice for a good reason. I am really sorry if you get hurt or involved in this. I love you both so, so, so, so, so, so much I don’t want anything bad to happen to you. I hope that this has not ruined our relationship. But Mr Rogers has brought this on himself. If he was a better dad and a better person this wouldn’t have happened. I promise I will come and see you or you can come and see us at any time. My address is (omitted). Or you can reply to this letter or you can call my mums number is (omitted).
Lots of love. X xxxooo (heart drawn)”
Annexure ‘R4’ to the father’s affidavit was a copy of a card X had sent to her paternal grandfather for his birthday. The sentiments expressed by X to her grandfather in that card were indeed loving both towards him, her grandmother and various other members of the paternal family. Her last sentence was in the following terms:
“I love them all very much and I miss them so much.”
The father expressed concern that, in relation to X’s comments to his father in the first piece of correspondence, it was indicative that the mother had been denigrating him to the child. He expressed concern with respect to the second piece of correspondence namely that the mother was not facilitating contact between X and her extended family.
He said he was concerned about the mother’s attempts to prevent him from attending at (omitted) Primary School for any reason.
He deposed to agreement between the parties in October 2014 for X be christened at the same time as the mother’s son A, with one of the paternal aunts to act as god-mother. He said those arrangements broke down and he said he was advised by his sister that the mother had made various allegations about him to her, including that he had threatened violence, was growing drugs and kept a pillowcase of money in X’s bedroom (paragraph 40).
The father deposed to the mother not communicating with him further about X’s schooling, her settling in to her new school, the christening or any health issues relating to X as well as not providing him with any information relating to X’s sports activities.
In paragraphs 46 and following he denied the mother’s allegation that he was facing drug related criminal charges, and deposed to police having attended at his premises on 21 December 2015 at 9:35am, searching his house for marijuana, and to him being issued with an expiation notice and being fined in the sum of $360.00.
He deposed in paragraph 50 to taking marijuana for medical reasons and referred to the order of 4 April 2014 wherein both parties were restrained from consuming non-prescribed prescription drugs for a period of 24 hours prior to and during any period of time X was to spend with them. He referred to evidence at the trial prior to the orders of 4 April 2014 with respect to the mother’s history of amphetamine use.
He denied that he was cultivating marijuana for sale and hiding cash proceeds in X’s bedroom. He admitted in the affidavit to cultivating a number of plants for his own use, but not for sale.
He deposed to the money in X’s bedroom being money that had been given to X by her extended relatives, and in circumstances where she had no bank account, being kept for safe keeping in a small green plastic bag in the toy basket in X’s room (paragraph 54).
He deposed to the amount of money stored being $3,950.00 being monetary gifts from the paternal family over the last ten years or so. He deposed to X being fully aware of the money and its location in the room.
He then deposed to issues relating to the mother’s proposal to travel with X, which were dealt with in an earlier order, and to working hard to get on with his life and working towards a better future for X and himself following upon graduating with a (omitted) degree as a (occupation omitted) in (omitted) 2014.
The father denied sending any threatening text messages to the mother in relation to varying topics but admitted he had sent text messages to her about various topics including X’s change of school and to clarify the mother’s residential address for the purposes of schooling and service of the proceedings.
Earlier in the affidavit in paragraphs 15 and 16 he had deposed to ascertaining a residential address for the mother from a passport application for X that she had sent to him and to trying to find out from the mother where she was living as he was concerned that X’s enrolment at (omitted) Primary School had been fraudulently obtained using the (omitted) address shown on the passport application.
He further deposed in paragraph 65 to having sent a number of text messages to the mother in the way of notifications or warnings about potential defamation proceedings being commenced against her should she publish defamatory remarks about him to members of the public such as the administration or governing council of X’s school.
Annexure ‘R6’ to his affidavit contained a series of what appeared to be text messages transcribed by the father dated 30 October 2014, 5 November 2014, 21 December 2014 and 26 December 2014. The purported messages from the father to the mother of 26 December 2014 are at the very least demanding.
In the mother’s affidavit filed 3 June 2015, she raised concerns about the father’s alleged “playful banter” with X with respect to the issue of punches in the head (paragraph 9) and denied that X was being alienated from the paternal side of the family.
She deposed to X being hesitant in meeting with members of the paternal family in light of the matters she raised with the mother and police but to having had a conversation with her paternal grandparents on 1 May 2015, to expressing a wish to see her grandparents and the mother confirming that she was amenable to facilitating communication and visits (paragraph 17).
The mother denied that the letter to the father from her solicitor requesting that the father not attend at X’s school was an attempt to intimidate him but rather was an attempt on her part to allay X’s anxiety about her father attending at school.
The mother deposed to being prepared to communicate with the father in relation to X’s schooling, extra-curricular activities and health and to having withheld the information because of the attitude expressed to her by the father in communications (paragraph 20).
The mother denied using any illicit substances since the end of her relationship with the father (paragraph 22) and to X disclosing to her that she had no knowledge of the green plastic bag, which she referred to as “the pillowcase” being in her room until just a few days before the mother withheld her from the father’s care in December 2014.
On 11 June 2015 the Independent Children’s Lawyer filed an affidavit annexing a copy of a report from Dr C, psychologist. The report was prepared pursuant to an order made on 26 February 2015. Dr C interviewed the mother, X, the mother’s partner Mr Landon, the father and then had a further brief interview with the mother and her partner.
Of particular assistance was the material contained under the heading “Interview with the child, X (aged 12 years 2 months), on 30 March 2015” I set out in full hereunder the matters raised by Dr C under that heading namely:
“X recalled coming for previous assessment some years ago. She said she was now in Year 7 and was ‘pretty busy’. She noted she had moved from (omitted)’s school to (omitted) Primary and had ‘made new friends’.
When it was noted that the Court had decided on her care arrangements in April 2014 and she had kept up week about shared care, X was asked how it had been going. She said ‘he {the father} can get a bit aggressive. He started being a bit tougher on me and scarier when he’s angry. He’s throw things and smashed a car windscreen. Then it got worse to where he threatened to punch me in the face. I thought that he could actually hurt me. Now I’m even more scared that he’s do something to me. I didn’t want dad to find out if I told mum, so then I told mum everything’.
X then continued by stating that ‘a few months before December, like September, I got more worried. He started getting more aggressive. Sometimes he’d punch me in the arm, sometimes as a poke.’
When asked about the issue of her dad growing things in a room, X said ‘I’ve known that for about a year and a half. The room opposite where I go outside, I could see plants and it reeked really badly, and there were bright lights and fans. I knew, but I started to understand more as I got older. It didn’t hit me ‘til now that something could happen. He went into my room and I heard the rustling of a plastic bag and saw a zip lock bag holding two or three hundred dollar notes.’
When I asked X a question, making reference to her ‘dad’, she said ‘I prefer to call him Mr Rogers. I’m insisting on calling him Mr Rogers.’ She then continued: ‘I don’t really ask about it {about the room and related issues}. He lies about the smallest and biggest things. For example, he came back from Court and told me they {the parties} went for coffee. I don’t feel like I can trust him anymore. So I wouldn’t believe him. I don’t want to see him anymore. I don’t want him in my life’.
When asked if she would willing to see dad as part of the assessment, X shook her head side to side and said ‘I wouldn’t find anything I wanted to talk to him about, and he doesn’t have any time for me. He’s busy smoking out the back and always complaining he’s got no money. Just get a job. He got offered a job but declined it because it was boring.’
When asked how close she used to feel with her dad, X said ‘years and years ago I had ten {out of ten}. Now it’s dropped down slowly to two and a half. He uses me as bait to hurt mummy. His love for me is not as great as his hate for my mother. When he gets angry he tenses and clenches his fists and his eyes are full of hate and anger.’
When asked what her father could do to perhaps make a difference to her attitude, X said ‘I want to stop smoking, everything, and growing {marijuana}. He thinks everything is my mum’s fault. He said my mum is never over it {the relationship}. Bitterness. Get a job to help provide and act like someone who cares and is interested. He acts like he doesn’t care. I just want to forget about this. He can be really good at hiding it. Sometimes he takes anger out on the dog and kicks him. He bad mouths her.’
When asked again, X was not willing to meet with the father as part of the assessment.”
Dr C of course spoke with X about seeing her father as part of the assessment process, but X was not willing to do so.
In the section of the report headed “SUMMARY & OPINION”, Dr C expressed his concern about the ongoing lack of ability of the parties to effectively protect X from their conflict and to X, having grown older, becoming increasingly frustrated in having to try and negotiate a path between the complex conflicted situation and having reached a point where, from her perspective, it was easier to cut one part of her family, namely her father, out of the situation altogether.
Nevertheless, he was of the view that X was clearly becoming increasingly uneasy in her father’s household over the latter months of 2014, to having become more concerned about her father’s anger and the possible effect of that anger on her and to her generally being uneasy about the father’s capacity to manage his own emotions.
He expressed concern about the mother taking X to be interviewed by authorities before discussing the original incident with the father. He referred to the father’s ‘plausible’ explanations with respect to his growing of marijuana, the knowledge of the court, the mother and the child as well as the police of his use of medicinal marijuana and growing of same prior to the trial resulting in the 4 April 2014 judgement, and the benefit to X if the mother had discussed these issues with the father and solicited his views before taking action by way of taking X to the police.
Nevertheless, he expressed his view that it was clear that X was not comfortable in her father’s environment with marijuana and possible illegal activity in the father’s household and that she clearly did not want those issues to be part of her world.
He also referred to X’s sense of distrust about the money in the room and her concern that it might be related to the father’s cultivation of drugs and to overall X developing anxieties ‘about her safety and comfort in the father’s care’.[2]
[2] Report of Dr C dated 4 June 2015, page 9
He referred to X’s anxieties being exacerbated by her concern as to her father’s reaction to her talking to police about the issues, and expressed a view that it was understandable from X’s perspective that she would try and seek to avoid her father.
He said on page 9 of the report:
“…it remains clear that there are now significant emotional barriers to X resuming her relationship with the father…”
He noted that the mother and her partner had both expressed to him their view that they were supportive of steps being taken to repair the connection between X and her father but opined that:
“…there need to be changes in the climate within which X has any enduring relationship with the father. If reunification counselling is successful, it is hard to imagine that X would be willing to go back to staying with her father so long as he is emotionally volatile with her, smokes marijuana or cigarettes, grows marijuana in the house, or keeps money in the child’s bedroom. The father needs to consider how important his connection with X is to him, and to take all steps necessary to repair the relationship.”[3]
[3] ibid
Dr C recommended:
a)That the parties commit to cooperating and facilitating a therapeutic process of reunification (preferable with Ms D or Ms A) between the child X and her father, with reassurance to the child that the father will not be angry at her over her statements to the mother or other authorities.
b)That the father undertake to provide to the Court all evidence relevant to the issues raised by X and take steps to establish a home environment without any possible appearance of impropriety, within which X can feel safe.
c)That the therapist provide feedback to the Court after no more than three months, with particular reference to progress in achieving the desired reunification, the cooperation and participation of the parties, and recommendations about any conditions that would need to be placed on any further time spent by X with her father.
d)That progress be reviewed in some four to five months.
On 24 August 2015, the Independent Children’s Lawyer filed a further affidavit. Annexed to that document was a letter of report from clinical psychologist Ms A. She advised the Independent Children’s Lawyer that she had received a copy of the Family Assessment Report of Dr C, a copy of the order of 22 June 2015 and that she was providing a brief report in response to Dr C recommendations.
She advised the Independent Children’s Lawyer that she had met with the father on 23 July 2015, X and the mother on 28 July 2015, X again on 18 August 2015 followed by the mother and the father again on 19 September 2015.
In her letter of report Ms A went on to say as follows:
“I can advise that Mr Rogers has been cooperative and participative, but has struggled to take responsibility for the issues of concern raised by X in the Family Assessment Report. While he acknowledges that they are current concerns for X, he believes they are influenced, as part of Ms Landon’s agenda to alienate him from X. He also believes that he had the Court, the lawyers, the mother’s and X’s understanding of his use of marijuana and expressed frustration that this now being raised as an issue of concern. Further, with regard to Dr C’s view that X, as “an adolescent young lady, with increasing awareness of how the world works, has gradually become more and more dissatisfied with having to deal with the tensions and dilemmas arising from her complex family situation”, Mr Rogers believes that there is no evidence from this point of view. He characterizes (sic) the mother as vexatious and litigious. He also raises concern regarding her care of X.
Ms Landon has been cooperative and participative, and conveyed that she appreciates, given her own background of having a difficult relationship with her father, the importance of children having positive relationships with both parents. However, she reports X is at this time thriving, academically and behaviourally, without the strain of living between two homes (it is noted that Mr Rogers does not agree, on the basis of X’s most recent school report, which the writer has not seen). Ms Landon has agreed to the writers therapeutic advice to ensure X is no longer exposed to adult matters, so that X is free to form her own view of the father, free from concern regarding her mother’s struggles (or not) with him. She has also agreed to gradually work with X over time to assist her to shift away from a black and white/all or nothing way of looking at her relationship with her father. Ms Landon is keen to see proceedings finalized (sic), noting the number of times the family has required intervention of the Court, and the cost to her, noting she is legally represented and paying for this (whereas Mr Rogers in the past was reportedly self-represented, and at this time is reportedly in receipt of legal aid funding).
X has not engaged or participated. She has attended, and been polite but resentful, and clearly and repeatedly articulated her desire to not live in a house where her father is “growing drugs, has no job, and I don’t feel safe” (discussions reveal she continues to be concerned regarding Mr Rogers’s emotional reactivity).
It is my view that reunification therapy at this time will not be effective. X is not open to this, and Mr Rogers has more work to do in being able to sensitively respond to X’s current presentation, influenced or not. I do not propose any further appointments at this stage.
I note that Mr Rogers, Ms Landon and X all agree that X’s time with her extended paternal family has been positive, and that this should continue. It is the writer’s view that given X’s resistant presentation at this time in the formal therapeutic setting, this has far more chance of providing a step toward some level of reconnection with her father. If X demonstrates some softening in her thinking, I am more than happy to resume working with X, her mother and her father, with the aim of there being some time between X and Mr Rogers, while noting also Dr C’s view that the viability of future successful shared care has been seriously challenged by the events of the last year.”
On page two of the letter of report, Ms A referred to X not engaging or participating in the process. She referred to her having attended at the sessions, being polite but also resentful and not wanting to live in a house where her father grows drugs, has not job and she doesn’t feel safe.
Ms A referred to discussions between she and X revealing X’s ongoing concern about the father’s ‘emotional reactivity’.
She clearly expressed her view that no further appointments would be of benefit in circumstances where X was not open to the process and where in her view the father had much more work to do in being “able to sensitively respond to X’s current presentation, influenced or not”.
Of particular note in the letter of report was the fact of X spending time with her paternal family and such time being supported by the mother and confirmed by the father. It was the opinion of Ms A that that informal approach was much more likely to result in X reconnecting with her father to some level.
She also expressed the view that if X was open to working with her and her father, she would be prepared to reconsider her, that is Ms A, involvement.
On 25 August 2015, a consent order (as amended by order of 24 September 2015) was made providing for both parties to do all things necessary to enrol X at (omitted) High School. All existing orders as to reunification therapy, namely paragraphs 1, 2, 4, 5 and 6 of the order of 22 June 2015 were discharged.
The mother was ordered to facilitate X attending upon the paternal family for the purpose of spending time as agreed between the mother and the paternal family and subject to X’s wishes. The matter was further adjourned to 1 October 2015.
In February 2016 the father filed a further affidavit. The material contained in the affidavit was expressed in a rambling fashion, the affidavit extended to 431 paragraphs over forty pages and a further two pages of various case references. Annexed to that affidavit are a further eight pages of what appear to be transcribed text messages between the father and the mother.
The overall tenor of the affidavit appeared to be a history of the relationship between the father and the mother from the father’s perspective, a litany of complaints by the father as to the mother’s conduct towards him and her parenting practices and apparently supporting what appeared, on page forty of forty two pages, to be orders he sought to protect he and X “for the malicious and severe unlawful conduct/family violence/child abuse” (paragraph 424) as well as orders to “punish and deter the respondent’s” and “orders to protect my property interests”.
Mr Rogers, by virtue of the contents of paragraph 427, also seemingly sought that “the courts transfer the matter by writ to the Supreme Court pursuant to cross vested jurisdiction in the Supreme Court Rules and the matter be heard concurrently with Family Court proceedings”.
Overall, the contents made little sense and in the main the affidavit did not consist of evidence but rather opinion and comment.
On 23 February 2016 the court ordered that each party and the Independent Children’s Lawyer file and serve a summary of argument on or before 9 August 2016, with the summary to include a list of all authorities to be relied on by each party and the Independent Children’s Lawyer.
On 9 August 2016 the father filed a further affidavit which again was extremely difficult to make any sense of and appeared to be his case outline document including a series of authorities.
On 15 August and 18 August 2016 the Independent Children’s Lawyer and the mother’s legal representative each filed summaries of argument.
There is no doubt that the father was labouring under the difficulties of being a self-represented litigant. Nevertheless, Mr Rogers has been involved both on a represented basis and as a self-represented litigant in litigation regarding X for many years, and it was of significant concern to the court that he presented affidavit material in the fashion that he did.
Consideration of Principles of Summary Dismissal and Child’s Best Interests
It is apparent from the authorities to which I have referred that it is a serious matter for a court to summarily dismiss an application, as to do so prevents a party from pursuing his or her application or response and the associated opportunity to present his or her case in a manner such that evidence is tested, findings made and decisions handed down.
The father’s application filed 13 January 2015, being the subject of the mother’s application for summary dismissal of same, sought that X be delivered up to his care in accordance with the parenting orders made by this court on 4 April 2014. In the event that the mother failed to deliver X up to him, the father sought that a recovery order issue for the child, and further that the father have “make-up time” to recompense for the time that he did not spend with X resulting from the mother retaining X in her care.
He also sought that X’s name be placed on the Australian Federal Police Airport Watchlist and the mother be restrained from taking X out of the Commonwealth of Australia. The issue of the mother taking X overseas and X’s name being placed on the Airport Watchlist was dealt with by the court on 19 January 2015 and 2 February 2015, as previously referred to herein.
The outstanding issue in respect of which summary dismissal is sought therefore, is the delivery up of X to the father’s care for the purpose of a return to the parenting orders of 4 April 2014.
At the time of the hearing of this application, X had not spent time with her father, nor effectively communicated with him since December 2014. In December 2014 X was aged 11 ¾ years. By the time of the hearing of the application, X was aged 13 ½ years.
Dr C spoke with X on 30 March 2015, some three months after X had, according to the mother, refused to return to her father’s care. Dr C had by that time had a long involvement with the parties and X, having prepared several reports during earlier proceedings.
Notwithstanding his best efforts as referred to in his report dated 4 June 2015, Dr C was unable to obtain X’s agreement to see her father as part of his assessment. Dr C referred to putting the question to X on more than one occasion during the interview process but said X continued to maintain that she was not willing to meet with her father.
Dr C recommended that the parties should commit to cooperating in facilitating a therapeutic process of reunification between X and her father. In paragraph 1 under the heading “RECOMMENDATIONS” on page 9 of his report, he said that process should occur with reassurance to X that the father would not be angry with her over statements to her mother or other authorities.
Dr C further recommended in paragraph 3 of his recommendations that whoever undertook the reunification therapy should provide feedback to the court within a three month timeframe, particularly in relation to progress in achieving the desired reunification and also with reference to the cooperation and participation of the parties.
Dr C also recommended that the therapist provide recommendations about any conditions that would need to be placed on further time spent by X with her father.
The parties attended upon psychologist Ms A. Ms A provided a report dated 20 August 2015, which was filed by the Independent Children’s Lawyer on 24 August 2015.
As previously stated herein, she referred to the struggles on the part of the father to take responsibility in relation to matters that X had spoken to Dr C about that were concerning her. She described him as being frustrated because of his belief that the mother, the court and X all understood that he used marijuana for medicinal purposes, and to expressing his view that the mother was influencing X and that it was part of the mother’s plan to alienate X from him.
She recorded that the father was of the view that there was no evidence for Dr C comments about X’s increasing awareness of her circumstances and the difficulties that she had in dealing with those complexities and further, that he expressed a view that the mother was vexatious and litigious and was not appropriately caring for X.
By contrast Ms A described the mother as being cooperative and participative and in particular, being aware of the benefit to a child of having a relationship with both parents in light of struggles she had had in that regard in her own life.
She noted that the mother reported X was progressing well in all aspects of her life at the time of the appointments, and further, to the mother agreeing to Ms A’s suggestion that she ensure that X was not exposed to adult matters and to the mother’s struggles in dealing with the father.
She noted that the mother was concerned about ongoing litigation and the costs of same and further that she was prepared to work with X to try and look at her relationship with her father in a more balanced way.
Importantly however, she noted that X attended her appointment, that she was polite but resentful, and repeatedly told Ms A that she did not want to spend time with her father both because of his activities in his house in relation to the growing and use of drugs but also because of her concerns about what Ms A described in page 2 of her report as Mr Rogers’ “emotional reactivity”.
Ms A was clear in her recommendations that reunification therapy would not be effective at that time. She was of the view that X was not open to the process and further, that the father had not reached the stage of being able to sensitively respond to X.
At that stage, X was still seeing the paternal family on occasions and Ms A thought that was a more likely way of ultimately restoring X’s relationship with the father at least to some extent, rather than litigation.
Ms A indicated that she was happy to work with the family in the future if X became more open to participating in the process but otherwise she did not propose further appointments.
By that time X had expressed her concerns and views to her mother, the police, Dr C and Ms A. She was also represented by an Independent Children’s Lawyer. The same Independent Children’s Lawyer had represented X in the previous incarnation of these proceedings.
In circumstances where the application for summary dismissal in this matter relates to parenting issues, the court must consider the application against the backdrop of the legislative requirement that the court must make an order that is in the best interests of X[4].
[4] Family Law Act 1975 (as amended) ss.60CA
To determine what is in a child’s best interests, the court must take into account relevant factors pursuant to section 60CC(2) and section 6CC(3) of the Family Law Act 1975 (as amended).
X is entitled to have both of her parents have a meaningful involvement in her life, to the maximum extent consistent with her best interests[5]. In considering X’s best interests, the court must consider the benefit to her of having that meaningful relationship with both parents[6].
[5] ‘supra’ s.60B(1)(a)
[6] ‘supra’ s.60CC(2)(a)
It was implicit in the orders made by the court on 4 April 2014, that the court’s finding at that time was that it was in X’s best interest to have a meaningful relationship with both of her parents. The court referred on numerous occasions in that judgment to the very real difficulties in communication between the parent’s, to the concerns of the expert that neither of the parties had realistically tried to take active steps to improve their communication, and to the need for them so to do.
The court commented in that judgment in paragraph 25 to the father exhibiting a lack of ability to respectfully consider the opinions of others. The court described his attitude to the mother as being disrespectful and dismissive. It found that the father presented as having a lack of ability to acknowledge the mother’s right to have her opinions and for him to listen to and consider those opinions.
The court found that the mother was worn down “by the father’s almost pathological need to argue with her about every aspect of X’s care and to present himself as the only parent who was really a ‘champion’ of X and standing up for her ‘rights’.”[7]
[7] Landon & Rogers [2014] FCCA 666, paragraph 26
Any orders that the court makes in relation to X must also ensure that she is protected from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence[8]. That issue was also referred to in the April 2014 judgment.
[8] Family Law Act 1975 (as amended) ss. 60CC(2)(b)
X spoke to Dr C, as he reported, about her concerns as to the father’s emotional reactivity to her, about her father becoming more aggressive, about him becoming tense, clenching his fists, and to his eyes being full of hate and anger on occasions. She said the father on occasions kicked the dog when he was angry. She spoke of the father ‘bad mouthing’ the mother. These matters were all referred to on pages 4 and 5 of Dr C report dated 4 June 2015.
Dr C reported that X told him that she thought the father had become more tough on her and scarier when he was angry, and that the father would throw things and had smashed a car windscreen. He said she told him that the father had threatened to punch her in the face, and that she was becoming more scared that he would do something to her. She reportedly spoke of her concern about the father growing drugs in the house and “it didn’t hit me til now that something could happen”. She reportedly told Dr C that she did not trust her father. These matters also appeared on pages 4 and 5 of Dr C’s report.
X told Ms A that she did not feel safe. That was reported by Ms A on page 2 of her report.
X’s views must be considered by the court, with such weight being given to those views as the court deems appropriate, particularly taking into account factors such as a child’s maturity and level of understanding[9].
[9] ‘supra’ s.60CC(3)(a)
The mother’s evidence as deposed by her was that X spoke to her about these matters of concern in the latter part of 2014, leading up to the alleged disclosure by X of the father’s drug growing activities prior to the mother retaining X in her care in December 2014.
At that time X was 11 years and 8 months old. By the time she spoke with Dr C on 30 March 2015, X was aged 11 years and 11 months.
At the time X spoke with Ms A, she was aged 12 years and 2 months and 12 years and 3 months respectively.
The evidence as to X’s views and perceptions in the matter was adduced by the Independent Children’s Lawyer through the two experts to whom I have referred.
Dr C had met X on several occasions between May 2012 and March 2015. By the time he spoke with X in March 2015 he was concerned about the impact on X of the ongoing communication difficulties between the parties, the inability of the parties to keep conflicts, neutral disrespect or adult issues from the child and the seeds of distrust that in his view that had sown in X. These matters were raised in the first paragraph under the heading “SUMMARY AND OPINION” on page 7 of Dr C’s report.
Dr C referred to X always showing sides of wanting to find ways of preserving her connection with each of her parents in the midst of tensions. He opined that she was now ‘fed up’ with that approach. This is referred to on page 8 of his report.
He continued on page 8 of the report to record his belief that X had become more uneasy in her father’s care over the latter months of 2014, and he expressed some complaint about the mother taking X to the authorities before discussing the incident with the father.
I have already referred to the findings set out in the April 2014 judgment as to the father’s inability to be respectful towards the mother and to consider any opinions or views she may have, and it is hard to see how the mother would have had any capacity to discuss the concerns X allegedly raised with her with the father before appropriately going to the authorities. This was of course in circumstances where the disclosure of X involved undisputed circumstances of the father growing marijuana in the house in which he lived and where X spent regular time.
X refused to participate in any observation of her with her father in the presence of Dr C. Dr C recommended reunification counselling. X refused participate in reunification counselling. Ms A referred to the need on the part of the father to consider more carefully his response to X’s concerns.
X made her views plain to, no doubt from her perspective, anybody who had asked that of her. By the time of the hearing in September 2016 she was aged 13 years and 5 months. She was still not seeing her father.
The evidence before the court as to her views did not suggest that they were of little weight or that they should not be seriously considered by the court. The Independent Children’s Lawyer submitted that X’s views were of the utmost importance and that taking into account the issues of concern raised by her and her age, they should not be ignored.
By the time of the hearing, X had effectively no relationship with her father, and had not done so for some one and a quarter years. X had resisted all and any attempts to facilitate such a relationship. In those circumstances, an order that she be returned to the care of the father pursuant to the terms of the order of 4 April 2014 would undoubtedly have a devastating effect on her psychological wellbeing, if not be impossible to enforce.
The capacity of the father to provide for X’s needs including her emotional and intellectual needs were clearly, from the reports of both experts, a matter of concern.
Dr C referred to the need for the father to be able to reassure X during any process of reunification that he would not be angry with her over her statements to the mother or other authorities. It was abundantly clear from the report of Ms A that during her interviews with the father he had not reached such a position. His views as expressed to Ms A accorded with the issues raised in his various affidavits.
That raised an important concern as to the need for any orders made by the court to protect X from harm, either physical or psychological.
X had already expressed to Dr C her concerns about the father harming her both physically, as well as psychologically by expressing what she viewed as his “hatred” towards her mother in X’s presence and his lack of concern for her views about his lifestyle.
These are no doubt issues that would seriously impact on X’s psychological wellbeing, and could certainly be characterised as a form of abuse. The court, as previously stated, had already referred in their reasons delivered on 4 April 2014 to the father’s lack of regard for the mother at any level.
The father’s proposals would require the court to ignore X’s views and perceptions. This raises the very real possibility of X suffering further psychological damage as, having been given the opportunity to express her views and perceptions of the matter, she would have to face the fact that the court had completely failed to hear or take heed of her views. Such an approach could be seen as a form of institutional abuse.
X alleged that the father had threatened to punch her in the face. The father denied that allegation. There were no criminal proceedings in that regard nor any intervention orders. Nevertheless, it is not a matter that the court can ignore and it was an issue of some significance to X when she spoke to Dr C.
The court is required to make orders that would be least likely to lead to the institution of further proceedings in relation to the child. The father has already instituted further proceedings. The matter has a history dating back to 2007. The court is concerned as to the impact on X of what must appear to her to be relentless litigation over her care arrangements.
Turning to the legislation governing summary dismissal, the court must consider whether Mr Rogers has no reasonable prospect of successfully prosecuting his application filed on 13 January 2015. The court must also consider if there is evidence that may be reasonably believed so as to enable him to succeed at the final hearing[10].
[10] Vivid Entertainment LLC & ORS v Digital Sinema Australia Pty Ltd & ORS [2007] FMCA 157 at paragraph 30
The evidence may be of an ambivalent character and only amount to reasonable prospects[11]. The discretion under section 17A[12] can only be enlivened if only one conclusion can be said to be reasonable[13].
[11] ibid
[12] Federal Circuit Court Act 1999 (as amended)
[13] Vivid Entertainment ibid at paragraph 30
Conclusion
Even at a preliminary stage of these proceedings where the evidence is untested I am satisfied that only one conclusion can be said to be reasonable.
I am not satisfied that there is any evidence which may be reasonably believed to enable Mr Rogers’ application to succeed at the final hearing.
I find that an order for summary dismissal would not do an injustice to Mr Rogers.
I find that failure to summarily dismiss the application would do an injustice to X and to the mother.
The mother was prepared to engage in reunification counselling as recommended by the expert Dr C.
The father’s approach to reunification counselling as described by Ms A in her report reflected the same nature and effect as his attitude expressed towards the mother in the proceedings that concluded by way of judgment on 4 April 2014.
X has made her position clear. She is of an age where she is entitled to have her views heard and considered. X had clearly been struggling with the conflict between her parents for many years.
At the time of judgment on 4 April 2014, the court found that X was resilient and that she valued her relationship with both of her parents but was concerned about conflict between them, to the extent that she did not like to be in the same place as both of her parents at the same time. Concern was expressed by Dr C at that time as to the impact on X of ongoing conflict between her parents.
It is not in dispute that the father was growing drugs in his home at the end of 2014. The father was fined by the police for so doing. Such a course of action on the part of the father was potentially illegal and certainly, at the very least, flouted the intention of the terms of paragraph 6(b) of the order of 4 April 2014 if the court accepted the father’s own evidence that he used marijuana for pain relief.
Reunification counselling was deemed by Ms A to be an unviable process for X, who simply refused to participate. Such a position on the part of Ms A was not unexpected in light of the material contained in the report of Dr C.
The court is satisfied that no orders that it could make in relation to X spending time with her father would be complied with by X or be able to be enforced by X’s mother or the court.
The father’s continued attempts to prosecute this matter in the face of objective information about X’s views and perceptions of the current state of her relationship with him, without any attempt to acknowledge responsibility in any part for the formation of those views, is deeply concerning.
I find that Mr Rogers has no reasonable prospect of successfully prosecuting his application[14]. I do not find that the father’s claim is frivolous or vexatious or an abuse of the process of the court, but for the reasons given herein express concern as to any further proceedings that may be issued by the father with respect to X’s parenting arrangements.
[14] Federal Circuit Court Rule Rule 13.10
In the mother’s response filed 30 January 2015, which predated the filing of the application for summary dismissal, the mother sought a discharge of all previous parenting orders, an order for her to have sole parental responsibility for X, an order for X to live with her and to spend time with the father in accordance with her wishes.
In circumstances where the court intends to summarily dismiss the father’s application for X to be delivered up to him either voluntarily or by way of a recovery order, the effect of that order will be that X will not be required to spend any time with her father other than as requested by and instigated by her or through her mother or grandparents.
It is clear that the parties have no ability to communicate effectively whatsoever, with such situation having been the case for a significant period of X’s life.
In circumstances where X’s time with her father will now be at her discretion, and where she is adamant that she will not have contact with her father at this time, an order for the parties to share equal parental responsibility for X is untenable.
In those circumstances, I find that it is in X’s best interests that the orders made herein on 4 April 2014 be discharged.
I find that it is in X’s interests for the mother to have sole parental responsibility for X, for X to live with her mother and spend time with her father in accordance with her wishes.
I am satisfied that X has the capacity to communicate with her paternal family at her discretion, and I am satisfied that that provides X with an avenue to keep her father informed of those aspects of her health and education as may choose.
I find that a continuation of any orders that provide for communication between the parties would result in X continuing to be exposed to conflict between her parents, a situation which cannot be in her best interest.
For those reasons I make the following orders.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Mead
Date: 5 December 2017
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