Warner and Houseman

[2009] FamCA 192

FAMILY COURT OF AUSTRALIA

WARNER & HOUSEMAN [2009] FamCA 192

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN – Child related proceedings

Rice v Asplund (1979) FLC 90-725
Miller v Harrington (2008) FLC 93-383

APPLICANT: Mr Warner

RESPONDENT: Ms Houseman

FILE NUMBER: MLC 9756 of 2008

DATE DELIVERED: 27 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 27 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: NA

COUNSEL FOR THE RESPONDENT: Mr M.L. Pavone

SOLICITOR FOR THE RESPONDENT: Vicki Sweet Family Law

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Ms M. Vohra

SOLICITOR FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Septimus Jones & Lee

Orders

1. The father’s Application in a Case filed on 27 October 2008 be dismissed.

2. The father’s Application for Final Orders filed on 27 October 2008 be dismissed.

3. Pursuant to the provisions of s.118 of the Family Law Act 1975 the applicant father MR WARNER must not institute proceedings under the said Act without leave of a Judge of the Court first had and obtained, any such application to be made, in the first instance, to Justice Mushin if reasonably available.

4. The father pay the mother’s costs of and incidental to the said applications fixed in the sum of $3000 with a stay of 6 months.

5. The father pay the Independent Children Lawyer’s costs of and incidental to the said applications fixed in the sum of $1550 with a stay of 6 months.

6. All applications be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS CERTIFIED

7.        Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9756 of 2008

MR WARNER

Applicant

And

MS HOUSEMAN

Respondent

REASONS FOR JUDGMENT

1. In May 2007 the parties conducted proceedings before me, seeking parenting orders with respect to their daughter who was born in February 2001 and is presently aged eight years.  On the third day of those proceedings the parties settled the applications and I made consent orders.  The orders discharged previous parenting orders with respect to the child and provided that she live with the mother.  The mother was granted the sole parental responsibility for her long‑term care, welfare and development, and in particular paragraph 4 provided "that the father not spend time with or communicate with the child".

2. Many aspects of those proceedings up until the time they were settled have been canvassed in some detail.  To a certain extent, that has been necessary because the application before me today is, on the part of the father, an application for both interim and final orders.  It is the application for final orders which is the principal application.  In that application, he seeks equal shared parental responsibility and essentially that the child live and spend time with and communicate with both parties "as deemed appropriate by this honourable court".  Further paragraphs of the final orders sought in that application deal with issues of changeover, restraint from abusing or assaulting each other, and issues to do with medical treatment and other matters which are not presently relevant.

3. The applications have come before me in the Judicial Duty List, in particular on an application on behalf of the mother, supported by the Independent Children's Lawyer, for the dismissal of the father's applications for final orders on the basis of the doctrine in Rice v Asplund (1979) FLC 90-725. In that context reference has also been made to a decision of the Full Court of this Court in Miller v Harrington (2008) FLC 93-383.

4. The circumstances in which the Court might consider the dismissal of an application which is effectively for the reopening of parenting issues have been set out in those and numerous other authorities.  The authorities are clear in several basic propositions.  First, it is open to the Court to make such an order for dismissal at any early point of the proceedings.  While there has been some reference to the concept of "summary dismissal", in accordance with the preponderance of authorities the process is not strictly in that context.  It is clear that any decision to dismiss such an application must be on the basis of what is in the best interests of the subject child.  I must look at the case of the applicant, in this case the father and, as I would paraphrase the authorities, determine whether he makes out a sufficient case on the particular facts such as would warrant it being in the child's best interests that the proceedings were permitted to continue.

5. Strictly speaking, the onus is on the mother, supported by the Independent Children's Lawyer, to establish that the proceedings should not continue because they are contrary to the best interests of the child.  It is accordingly necessary to consider the factual context at least briefly with regard to the proceedings as they were immediately before the settlement in May 2007.

6. In this matter, I was the trial Judge and have therefore had the benefit of the memory of the earlier proceedings.  Perhaps the most overwhelming aspects of those proceedings might be summarised first as being my considerable concern with respect to allegations against the father of serious family violence.  That family violence included his having pleaded guilty to at least one charge of threatening to kill the mother and having been sentenced to imprisonment for six months, suspended for a period of 12 months.  There was another trial of an alleged threat to a solicitor to kill the mother, in respect of which he was found not guilty. 

7. A further instance of violence was an incident involving the father driving his car into the back of the mother's car.  It is common ground that this happened outside the mother's home and that the child at least heard the crash.  To his credit, the father exhibited to me today a very high degree of upset when that incident was brought to his attention and acknowledged the harm that he had done to his daughter.  However, to the extent that he says that it was effectively a spontaneous act, I note in his affidavit, which is evidence before me today, that he has sworn that before he drove his car into the mother's car he checked to make sure that there was nobody either in the car or in the vicinity.

8. The second aspect of the previous proceedings was the degree to which the father constantly criticised the mother.  In his submissions today it is clear that he has not changed either his views or his behaviour.  He does not miss an opportunity to attribute blame to the mother. My concern during the trial that he was not able to bring himself to be positive about the mother and potentially promote the relationship between the child and the mother has continued and is confirmed.  Even after I pointed it out to him this afternoon, he continued with that behaviour.

9. The third aspect which is of significance is that of the attitude of professionals to what is in the child’s best interests.  At the trial I had the benefit of expert evidence from Mr I, a former family consultant of the Court and one of our most experienced consultants.  He ventured the view at the time that were the Court to find certain elements of violence as having occurred to the relevant standard, he would reluctantly be opposed to an order in favour of the father for him to see the child.

10. I have before me today as evidence a children and parents' issues assessment prepared by Mr A, a family consultant in this Registry, as part of the Less Adversarial Trial processes of the Court.  Mr A raised a number of key issues, including –

    ·the lengthy history of litigation regarding the child;

    ·the failure of the parents to agree;

    ·the father's lack of confidence as to his paternal role being positively promoted;

    ·the mother's allegations of family violence, including threats made by the father to kill her and the child;

    ·other ongoing litigation in other jurisdictions;

    ·the impact of ongoing conflict on the child; and

    ·the child's views and concerns about the father's mental state.

11. Mr A refers to it being concerning -

    that [the mother’s] reports of family violence are minimised by [the father].  It would appear that this is not inconsistent with [the father’s] views which were noted by Mr [I] in the family report dated 21 December 2006.  On that basis, given [the father’s] somewhat grandiose and distressed presentation at interview, and despite his denials about having mental health problems, [the father] will benefit significantly from forensic psychiatric assessment diagnosis, information from which the court will also benefit.  It is considered vital that this assessment occur prior to any consideration of [the child] spending any time with her father at this point of time.

12. Such an assessment has not taken place.  Belatedly today, the father asked me for the opportunity to have that assessment prepared.  I have been informed by Counsel who has appeared for the Independent Children's Lawyer today, who also appeared in that capacity at the trial, that at the time of the making of the consent orders I advised the father with regard to the need for an appropriate professional assessment.  In nearly two years it would appear that he has completed a minor course held at a fire brigade and may also have undergone some counselling, but there is no assessment of any sort before me today.

13. My assessment of him is that he presents with at least the same negative affect as he did at the trial, and I regret to have to find that I do not see that he has any greater perception or insight into his actions or their significance towards his daughter, who I have no doubt he loves very dearly.  However, until such time as he has, in my view, significant treatment and develops a perception and insight into his actions, he will not progress.  The element of his constant criticism of the mother is something which is totally contrary to the best interests of his daughter.

14. Ultimately the question of whether there is a significant change of circumstance is a matter of fact, based on the question of what is in the best interests of the subject child.  The child herself, albeit that she is only eight years of age, has expressed to Mr A concern with regard to her safety were she to be put in the father’s care for any period of time, and clearly does not want to be placed in such care. While I recognise her youthful age, those expressions are entirely consistent with the entirety of the evidence, and particularly with regard to her having witnessed in one way or another various events, in particular the car incident to which I have referred, which understandably would have made her extremely fearful of her safety in her father's care.

15. On that basis I find to the highest degree of probability that there is no significant change in the circumstances since the making of the consent orders on 3 May 2007.  Accordingly, pursuant to the ratio of cases such as Rice v Asplund, and Miller v Harrington to which I have referred, I find that it is in the interests of the child that the husband's application for both interim and final orders should be dismissed.  I will order accordingly.

COSTS

1. Having delivered the judgment on the substantive applications a short while ago, I now have three applications.  Two of those are costs applications, the first of them being on behalf of the mother in the sum of $3000; the second on behalf of the independent children's lawyer in the sum of $1550.

2. Section 117 provides that in proceedings under the act parties would normally each pay his or her own costs.  However, I am empowered by subsection (2) to make such order for costs as I consider just.  In considering whether it is just to make an order I must take into account the various matters in subsection (2A) to which I now refer.

3. On the part of the mother, she is funding her legal representation privately and she does not receive any child support from the father.  I have not been apprised of the financial circumstances of the mother.  The father says to me that he has no money and cannot pay an order.  However, that is only one relevant matter.  The father is not dependent on legal aid and has represented himself here today.

4. The father has been wholly unsuccessful in these proceedings and, particularly given their nature, it is appropriate that an order for costs be made.  The sum of $3000 is reasonable and I will order accordingly.  The same reasoning applies to the Independent Children's Lawyer's application.  In particular, this is public money.  In my view, because the proceedings have been wholly unsuccessful on the part of the father, it is appropriate that he make a contribution to the public purse in that regard, again particularly because he does not pay any child support.  There will be an order for $1550.

SECTION 118

1. The final application is pursuant to section 118 of the Act seeking an injunction preventing the father from bringing any proceeding without first seeking leave. This proceeding was brought within two years of the final consent orders and has been wholly unsuccessful and has not even gone close to establishing a prima facie case. The dismissal of the application was in my view clear, and it is also quite clear from several submissions that the father has made today that he intends making a further application.

2. It is not in the child's interests that such application be brought to the attention of the mother without the Court first deciding whether there is a prima facie case to warrant it being served on the mother. In my view the father's activities are clearly vexatious and in those circumstances an order under section 118 is appropriate. There will be an order pursuant to section 118 of the Act, directed to the father. There will be a further order that any application pursuant to section 118 be brought before me, if reasonably available.

I certify that the preceding twenty-nine (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  18 March 2009