Santanna and Santanna and Anor

[2012] FamCA 213

FAMILY COURT OF AUSTRALIA

SANTANNA & SANTANNA AND ANOR [2012] FamCA 213

FAMILY LAW - PRACTICE & PROCEDURE – summary dismissal – parties have twelve children – six children under 18 years of age being the subject children of the proceedings – intervention by Department of Family and Community Services – allegations of the father engaging in family violence and abusive and controlling behaviour – allegations of the father’s chronic marijuana addiction - application by the Department for dismissal of father’s oral application in relation to parenting dispute between the parties – where father has never committed to a written response representing his own application for orders – where father has failed to comply with previous orders for the filling of a written response – where expert medical evidence adduced recommended that the subject children be taken into community care for their safety – where only expert medical evidence adduced about father’s mental capacity was adverse to placing the children back into his residential care – where there has been a five day defended hearing on a final basis and is not a case where the father simply has a weak case with an entitlement for the estimate to be tested – finding there is no reasonable likelihood of the father succeeding with an application for residence – unjust for the father to be excluded from the final proceedings – orders dismissing father’s oral application for residence – orders for the father to file and serve a minute of orders which the father seeks and an affidavit in support confined to issues of time and communication with subject children

Family Law Rules 2004 (Cth) r 10.12

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251

APPLICANT: Ms Santanna

RESPONDENT: Mr W Santanna

INTERVENOR: Director-General Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

FILE NUMBER: PAC 3013 of 2008

DATE DELIVERED: 23 February 2012
Ex Tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 23 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weightman

SOLICITOR FOR THE APPLICANT: Flintoff Lawyers

RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

Orders

1. This matter is listed for hearing for 2 days commencing 10.00 am on 14 June 2012.

2. Pursuant to r 10.12 and r 10.14 of the Family Law Rules, the Response made orally by the father to the Application of the mother filed 3 May 2010 is dismissed.

3. The father is to file and serve on all other parties no later than 4.00 pm on

   
   

   12 April 2012:

   3.1a Minute of Orders for the time and communication he seeks with the children:

   (a)S, born … February 1997;

   (b)B, born … April 1998;

   (c)J, born … June 2000;

   (d)O, born … October 2003;

   (e)L, born … April 2006;  and

   (f)E, born … April 2007; and

3.2an affidavit by himself limited to the issue of proposed time and communication between himself and the children.

1. That the paternal uncle of the children, Mr B Santanna is joined as a party to the proceedings, as the Second Respondent.

2. That the Intervener is to file and serve no later than 4.00 pm on 15 March 2012:

   3.3a Minute of Orders sought;

   3.4any material to be relied upon by the Second Respondent Mr B Santanna.

3. The mother is to file and serve no later than 4.00 pm on 29 March 2012, any Response to the Minute of Orders sought by the Intervener.

THE COURT NOTES:

(A)The Intervener foreshadows a further application pursuant to r 10.12 of the Family Law Rules in respect of the father’s further application.

(B)The father has advised the Court that his Address for Service of documents continues to be … , Town A, NSW.

(C)The Second Respondent, Mr B Santanna, will file a Notice of Address for Service in due course.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Santanna & Santanna and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)PAC3013 of 2008

Ms Santanna

Applicant

And

Mr W Santanna

Respondent

And

Director-General Department of Family and Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application for summary dismissal by the Intervener the Director- General of the Department of Family and Community Services seeking the following orders:

   (1)[Mr W Santanna’s] Response to the Initiating Application of [Ms Santanna] filed on 3 May 2010 is hereby summarily dismissed pursuant to r 10.12 of the Family Law Rules 2004 (Cth).

   (2)Any other order the Court sees fit.

2. The application was supported by an affidavit of Mr M, a case worker employed by the Department of Family and Community Services (“the Department”). 

3. The application was supported by the applicant mother.  Reservations were expressed by the Independent Children’s Lawyer.

History of matter

1. The parties were married in 1989 and separated in 2008.  They had 12 children and the father also adopted the mother’s child from an earlier relationship.  There was a final separation in 2008.

2. On 22 May 2008, there was an application by the mother to the Local Court.  A response and affidavit by the father was filed on 3 June 2008.  The father was legally represented at that time.  Subsequently these proceedings were transferred by the Local Court to the Federal Magistrates Court.

3. On 11 August 2008, the application of the mother was withdrawn and dismissed and all outstanding applications were likewise dismissed.

4. The current proceedings were initiated by an application by the mother filed in this Court on 3 May 2010. 

5. The father did not file a response and other than for a brief period, has represented himself throughout.

6. On 16 June 2010 the matter came before Justice Loughnan and an Independent Children’s Lawyer was appointed for all of the children under the age of 18 and a Children and Parents Issues Assessment was ordered.

7. The father was ordered to file and serve a response document and all affidavit material on which he sought to rely on or before 20 June 2010.  The father did not file any material.

8. On 23 August 2010, six of the subject children were brought to see Mr C, Family Consultant for the assessment to be undertaken.  The father would not permit the two youngest children, then aged three and four, to be spoken to.  Included in that assessment is this paragraph in relation to those four children, S, B, J and O, who were spoken to by the Family Consultant[1]:  

   All four children spoke in extremely similar ways and tended to you identical language and tended to volunteer the same events from the past and described those events in the same way.  One of the children volunteered that she had read the affidavit material from both of her parents and it is extremely likely that all children have been comprehensively and totally inappropriately exposed to the details of the adult conflict (whether directly or indirectly).  [The father] was extremely open and appeared proud that he had fully discussed the situation with the children and that on many occasions he deliberately discussed matters with [the mother] while the children were present.  On other occasions [the father] discussed the matter directly with the children in [the mother’s] absence.  [The father] passionately described many times where he had deliberately and very forcibly (including aggressive swearing) made sure the children knew that [the mother] had behaved very badly towards the children.  This is particularly evident in the detailed account given by [O] where it is common ground that [O] was not even living within the household when the events were alleged to have occurred.

   [1]  Children and Parents Issues Assessment, p 4

9. The Family Consultant noted the serious allegations and denials of family violence in the matter and allegations by the mother of the father’s abusive and controlling behaviour.  A recommendation was made for a single expert psychiatric report to be undertaken, for both parents to undertake a parenting after separation type program, for the father to undertake specific drug counselling in relation to his chronic marijuana addiction and for there to be drug urine screens over the next six months to determine the extent of the father’s marijuana usage.  There was a recommendation that the six subject children begin to spend time with their mother of whom they had seen very little since separation.

10. On 25 August 2010 the Children and Parents Issues Assessment (CAPIA) was released to all parties.

11. On 22 October 2010 the matter came before Justice Ryan, who made extensive and detailed orders in the matter, partly by consent and partly by determination.  One of those orders made by determination on that date was that the father file and serve a response to the mother’s application within 28 days (by 19 November 2010).  The father did not comply and did not file a response.

12. The recommendations of the Family Consultant were included in the consent orders.  In particular:

    13.That the father consult his medical practitioner to obtain a referral for drug and alcohol counselling.

    14.That the father contact Family Support Services [Town A] to enquires about parenting courses and to complete those courses;

    17.That the father attend a recognised pathology lab for supervised drug screens on a random basis within 24 hours of receipt of request by the Independent Children’s Lawyer.   

13. The matter was listed for final hearing for five days before me commencing

    
    

    16 May 2011.

14. On 20 December 2010 an order was made for the appointment of an alternative single expert.  Dr Y, Clinical Psychologist was appointed as the single expert and to prepare a report.

15. On 8 February 2011, when the matter was before the Court for directions, the Independent Children’s Lawyer noted that in the circumstances he would cease pressing for the opportunity to speak to the children who had not to that date been made available to him for interview.

16. On 20 April 2011 the expert report by Dr Y dated 7 April 2011 and an addendum report dated 12 April 2011 was released to the Independent Children’s Lawyer and through him, to the Director General of the Department of Human Services.  Dr Y had recommended consideration of the children being taken into care for their safety.

17. On 4 May 2011 the Director General intervened in the proceedings and was a party for the hearing which commenced on 16 May 2011.

18. On 16 May 2011 the final hearing commenced with the father representing himself.  At that time the father had not filed any affidavits and had not complied with various orders referred to in these reasons. 

19. During the course of the hearing the father indicated that he had not read any document relating to the proceedings that had come through the mail and had formed the habit of putting all such correspondence in the bin. 

20. Between 16 and 20 May 2011 there was a fully contested defended hearing which ran to conclusion. 

21. On 25 May 2011, orders pending further order were made and reasons for judgment were delivered ex-tempore.  The six subject children, E, L, O, J, B and S were taken into care.

22. On 2 June 2011 the father filed an application in a case and leave was granted for short service.  The orders sought were as follows:

    (1)    The matter should be relisted urgently for the sake of these children to get settled and most important to feel safe.

    (2)    That the children be placed in the house they own in [Town A] with their brothers and sisters and it is not only affecting the children in the house but also the kids that have been removed their lives are on standstill.

23. This application appeared to be in the nature of an informal appeal and was dismissed on 14 June 2011.  On that day the reports of Dr Y and Mr C were released to the Department for the provision of the reports to any psychologist or mental health expert whom the Department engages for the benefit of the children.

24. On 20 July 2011 further orders were made. 

25. Order 9 of the orders made on 25 May 2011 was suspended.  That order was for an assessment and report of the bonding and attachment between Ms Z and the two youngest children, L and E.  At that time B had gone missing from her foster placement and the first psychiatrist who had been instructed in the matter withdrew as an expert.  Dr R was substituted.

26. An affidavit was filed by Mr M on 14 June 2011 setting out the case work that had been done with the children since the orders of 25 May 2011.

27. On 31 August 2011 the reports of Dr R dated 23 August 2011 were released to the mother’s treating counsellor, over the objection of the father.  The father also objected to the provision of the reports to the children’s counsellors and that application was deferred.

28. On 3 November 2011 the application for the release of the reports of Dr R, Dr Y and the Family Consultant was granted in order to assist therapeutic counselling for the six subject children.  On that day the Director General foreshadowed an application for summary dismissal of the father’s application.  Directions were made for the filing of documents in that regard and the application was set down for 23 February 2012.

29. On 3 November 2011 the father had not attended at the stated time.  However later in the morning the father did attend the Newcastle Registry.  On that day, with the assistance of the Registry Manager, he filed an affidavit annexing a report dated 22 June 2011 from a psychiatrist whom the father had seen through the general practitioner who treats the father.  I granted leave in Chambers for the filing of that affidavit pursuant to the orders which had been made on 31 August 2011.  Order 4 of those orders was as follows:

    4.     The father has leave to file an affidavit by any psychiatrist who prepared a report on behalf of the father.

30. The Registry Manager also provided the father with a copy of the orders that had been made by me earlier in the day.   

31. On 8 December 2011 orders were made directing the Independent Children’s Lawyer to write to Dr V, the psychiatrist for the father and advise him of his report having come into evidence and to enquire of him whether he was willing to be an expert witness.  On that day there were appearances by and on behalf all parties.

32. On 23 December 2011 the Independent Children’s Lawyer filed an affidavit annexing a copy of his letter to Dr V, Consultant Psychiatrist and the doctor’s response.  The doctor’s response indicated that he was not able or prepared to operate as an expert witness.  The doctor also said this: 

    My obligation was only to the patient in front of me.  I was given no instruction.  I was unable to consider all of the material facts.  I am very aware that my report is based on incomplete research but I was not required to produce a written report that complied with the rules of expert evidence.  I was not informed by anyone that I might be called to give evidence in the case.

    In summary I do not want to appear as an expert witness either for the applicant [Mr W Santanna], or his wife former partner.

33. Given that the report annexed had been correspondence between Dr V and the father’s general practitioner, it was an entirely understandable response.  The implication for the father was that the only expert evidence before the Court is that of the psychiatrist Dr R who made the assessment of both parents.

34. On 23 February 2012 the application by the Department for summary dismissal was heard and submissions were made. Rule 10.12 of the Family Law Rules 2004 (Cth) says this:

    A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

    ….

    (d)  there is no reasonable likelihood of success.

35. The authority of Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 a decision of the High Court of Australia sets out the approach and applicable principles to summary relief:

    1.      It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests.  This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely sparingly provided;

    2.      To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;

    3.      An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination.  Even a weak case is entitled to 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 unpromising cause into a successful judgment;

    4.      Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.  If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

    5.      If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.  A question has arisen as to whether O 26, r 18 applies to part only of a pleading.  However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim; and

    6.      The guiding principle is, as stated in O 26, r 18(2), doing what is just.  If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

36. In this matter the father has never committed himself to a written response which would represent his own application for orders in the matter.  The father failed to comply with two previous orders for the filing of that written response.  He was given leave at the commencement of the final hearing on 16 May 2011 to give evidence about the orders that he sought.  His position fluctuated but at all times he sought to have the children return to live with him.  The fluctuation was as to whether they spend any time with their mother at all or some time by arrangement.

37. I explained to the father that the only evidence I had before me as to the state of his mental capacity was that of Dr R and to some extent, that of Dr Y and that unless there was any other evidence, it would be impossible for the Court to place the children back into the residential care of the father.  No doubt it was in response to those statements that the father sought to file a report by Dr V.  The report was filed well out of time, but leave was granted given the crucial nature of the psychiatric evidence in this matter.

38. Dr V having made it clear through the affidavit filed by the Independent Children’s Lawyer that he would not and could not appear as a single expert witness or as an expert witness for either of the parties whom he had seen in the past there is no evidence before the Court. 

1. Accordingly, it does seem to me that this is not a case where the father simply has a weak case with an entitlement for the estimate to be tested.  There has been a five day defended hearing on a final basis.  The father has had the opportunity to cross-examine the mother as well as Dr Y and the Family Consultant in the proceedings.  The Department intervened because of the strength of concerns by Dr Y, which were well confirmed by the assessment of Dr R.

2. In my view there is no reasonable likelihood of the father succeeding with an application for residence.

3. By dismissing the oral application for residence of the father, there was then a decision to be made about any further application.  I accept the argument of the Independent Children’s Lawyer that it would be unjust for the father to exclude him from the final proceedings which have now been set down for 14 and

   
   

   15 June 2012 on the issue of final placement of the children with their mother, or Mr B Santanna who has been joined as a second respondent to the proceedings. 

4. The father indicated a wish to set out the way that he would spend time and communicate with the children and despite his total failure to comply with filing directions in the past, orders were made today for the father to file and serve a minute of the orders which he seeks and an affidavit in support of that minute of order confined to the issues of time and communication with the six subject children. 

5. The Director General had not finalised orders sought and there will be an opportunity for all parties to cross-examine Mr B Santanna in respect of his application to have B live with him.  In the event that the father does not file his application and affidavit, then as was explained to him today, there will be no evidence from him before the Court on which to base decisions for future orders on time and communication, if any, between the children and their father.

6. Accordingly I have made orders both for the dismissal of the father’s application for residence and further directions for the conclusion of the matter in June 2012. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 February 2012.

Associate: 

Date:  2 April 2012