Saunders and Saunders

[2007] FamCA 1461

FAMILY COURT OF AUSTRALIA

SAUNDERS & SAUNDERS [2007] FamCA 1461

FAMILY LAW – CHILDREN – application for leave to file parenting application – leave required as applicant subject to s 118 restraint against commencing proceedings – evidence relied upon suggests applicant may have reasonable prospects of success – leave granted

Family Law Act 1975 (Cth)  s 118, s 60I
Family Law Rules 2004 r 11.05(4)

APPLICANT: Mr Suanders

RESPONDENT: Ms Saunders

FILE NUMBER: (P)NCC 2217 of 2007

DATE DELIVERED: 26 July 2007

PLACE DELIVERED: Newcastle
In Chambers

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 26 July 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Everingham Solomons

SOLICITORS FOR THE RESPONDENT: Nash Allen Williams & Wotton

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWEYR Ticehurst Foat

Orders

1. That the father is granted leave to file an application for the variation of contact orders made in the Family Court on 13 September 2004 and to seek orders in accordance with his application for final orders filed 16 July 2007.

IT IS NOTED that publication of this judgment under the pseudonym Saunders & Saunders is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:

MR SAUNDERS

Applicant

And

MS SAUNDERS

Respondent

REASONS FOR JUDGMENT

1. This is an application by the father for leave to file an application for parenting orders. Leave is necessary because on 13 September 2004, pursuant to s 118 of the Family Law Act 1975 the Court ordered:

   Until further order the father is restrained from filing any application in any Court under the Family Law Act (other than any appeal against these orders) except by leave of a Judge of this Court.

   In addition to this order the Court ordered:

   If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the child representative may on seven days written notice to the other party and the Court restore the mater to the list.

2. Having received a letter from Rainbow’s Contact Centre supporting a variation to the current orders, on 5 June 2007 the father wrote to the Court seeking to have this matter relisted.  The father’s request to relist was granted and on 2 July 2007 the matter came before me.  That day I made the following orders and notations:

   NOTATIONS:

   1.The parties agree that by letter dated 1 June 2006 (2007) Relationships Australia have advised the Court that they recommend a variation of the existing arrangements for the children to spend time with their father.

   2.The parties agree that as a consequence of the correspondence referred to above, Order 10 of the Orders made 13 September 2004 entitles the parties and Independent Children’s Lawyer to relist the matter.

   3.The parties agree that there are no current proceedings.

   ORDERS BY CONSENT

   4.That within 14 days the applicant father files and serves an application which sets out the orders he seeks on an interim and/or final basis, together with an affidavit setting out the evidence upon which he relies.

   5.On the respondent mother’s application, the court will determine in chambers whether there is sufficient evidence filed by the applicant father of a change in the parties’ or children’s circumstances and if there is not his application may be summarily dismissed.

   6.That pursuant to s 68L of the Family Law Act an Independent children’s Lawyer be appointed to represented the interest of the children [a son] born […] September 1994 and [a daughter] born […] April 1999 AND THE COURT NOTES that the children have previously been represented by Mr Bruce Foat.

   7.Upon service of the applicant father’s application referred to above, the Independent Children’s Lawyer files and serves a short submission concerning the children’s views as to the application referred to above which submission is to be considered with the applicant father’s application referred to above.

   8.That within 21 days the parties shall serve upon each other and the Independent children’s Lawyer copies of correspondence received from Relationships Australia concerning the relisting of this matter, but excluding the parties’ addresses.

   9.That further consideration of this matter is adjourned to 10.00 am on 30 July 2007.

   10.That the costs of all parties for today’s attendance are reserved.

3. In accordance with my directions the father, via his solicitors, filed an application for final orders and an application in a case together with supporting affidavit on 16 July 2007.  Although the parties agreed that I could receive written submissions from the Independent Children’s Lawyer concerning this application, none have been received. Accordingly, the father’s application for leave to proceed and the mother’s application that it be dismissed are determined on the basis of the material relied upon by the father, Justice Mullane’s judgment published 13 September 2004 and the history of proceedings since then.

4. By r 11.05(4) the Court “must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.”  This requires a preliminary assessment of the father’s evidence which he will rely on in pursuing his application to increase the amount of time he spends with the parties’ two children. The children are a son born in September 1994 and a daughter born in April 1999.

5. Since the parties separation in about June 1999 it appears that the children have lived with their mother and their contact with their father has, since 13 September 2004, been in accordance with orders made that day.  Summarised, these orders enable the father and children to spend time together bi-monthly at a contact centre.  The parties have used the Rainbow’s Contact Centre for these supervised visits.  Other than two visits, the father has attended all available occasions.  His non-attendance for the two missed visits is adequately explained. 

6. Following a visit between the father and the children on 6 May 2007, he met with the Director of Client Services at the contact centre.  The father was advised that the contact centre recommends a variation to the existing orders so that his time with the children is increased and the requirement for supervision gradually removed.  By letter dated 1 June 2006 Relationships Australia, who for this purpose write as the contact centre, provided the father with written confirmation of their oral advice.  Relevantly, the letter corroborates the father’s evidence that he and the children are relating well.  The Director of Client Services comments:  “The children appear to enjoy the visits and be quite relaxed in your company”.  It is recommended that the father consult a senior psychologist at Centacare, which recommendation the father has acted upon.  The motherreceived a letter, in apparently similar terms.  I anticipate that in accordance with my orders the parties have exchanged with each other and given the Independent Children’s Lawyer copies of the correspondence received from Relationships Australia.

7. Prior to commencing this application, the father, via the Law Company Pty Ltd wrote to the mother and invited her to participate in mediation.  By letter dated 25 June 2005, the mother responded via her solicitors and did not take up his offer to participate in mediation.

8. The father is in paid employment and rents a three bedroom home unit in T.  It appears he has appropriate accommodation for the children to stay with him overnight.  He says both children have expressed a desire to spend time with him overnight.  On the limited evidence available, it appears there is sufficient evidence which, if accepted, is capable of satisfying the Court that there should be a variation along the lines the father seeks.  His application has the advantage of potentially promoting a more meaningful relationship between him and the children, on his evidence it accords with the children’s views and has the support of the contract centre who has overseen these relationships for three years.  The application does not appear frivolous or vexatious and at this stage satisfies the reasonable likelihood of success test. 

9. On this basis, I am satisfied that the father should have leave to proceed. 

10. So that it is clear, although I have given the father leave to proceed, I have not determined whether if approximately $62,000 in costs is outstanding to the mother, how that issue should be addressed.  When the matter is next before me the parties will need to be in a position to address whether now that the father has leave to file his application, how the s 60I requirements are to be addressed.

11. For these reasons I make the orders identified at the beginning of this judgment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  26 July 2007