WARNER & HOUSEMAN

[2015] FamCA 187

FAMILY COURT OF AUSTRALIA

WARNER & HOUSEMAN [2015] FamCA 187

FAMILY LAW – PRACTICE AND PROCEUDRE – CHILDREN – Where final parenting orders made that the father spend no time or communicate with the child – where an order was made requiring the father to seek leave before instituting proceedings – where the father now seeks leave to file an Initiating Application to spend time with the child – Rice & Asplund considered – where the father does not specify with precision the relief sought – where little has changed since final orders were made – where the father’s application has little chance of success – order made dismissing the application

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

CDJ v VAJ (No 1) (1998) 197 CLR 172
Rice & Asplund (1979) FLC 90-725
Re Attorney-General (Commonwealth); Ex parte Skyring (1996) 135 ALR 29
Slater & Slater [2004] FamCA 990

APPLICANT: Mr Warner

RESPONDENT: Ms Houseman

FILE NUMBER: MLC 9756 of 2008

DATE DELIVERED: 23 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 5 November 2014

REPRESENTATION

THE APPLICANT: Hoban Lawyers

COUNSEL FOR THE APPLICANT: Ms Howe

Orders

1. That the applicant’s Application in a Case filed 25 September 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Warner & Houseman 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 MELBOURNE

FILE NUMBER: MLC 9756  of 2008

Mr Warner

Applicant

and

Ms Houseman

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is the father of Ms Warner, who is aged 14 years.

2. By his Application in a Case filed 25 September 2014, the father seeks leave to file an Initiating Application for orders allowing him to spend time with the child. The father filed an affidavit on 25 September 2014 in support of his application.

3. The father is required to seek leave before instituting proceedings by reason of paragraph 3 of the orders of Mushin J made on 27 February 2009, which provides as follows:-

   [that] 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. Hence, before the father can proceed with an application to spend time with L, I must determine whether he should be granted leave to apply for such orders.

Background

1. The father is Mr Warner, aged 51 years at the date of the hearing.  He is a farming contractor and lives in S Town.

2. The mother is Ms Houseman. She is aged 49 years and is self-employed.

3. The parties commenced their relationship in or about 1990 and separated finally on 29 January 2005.

4. L, who was aged 13 years at the time of the hearing and is now aged 14 years, is the sole child of the parties the subject of the proceedings.  She was aged almost four years at the time of the parties’ separation.

5. The father deposes that he has not communicated with the child since January 2006, when she was aged almost five years.      

6. In November 2005, the father pleaded guilty to serious acts of family violence committed after separation and during the period when the father was allowed to see the child. The charges to which the father pleaded guilty included threats to kill the mother and the child.  The father also pleaded guilty to driving offences related to an incident where he drove his motor vehicle into the mother’s motor vehicle and to breaches of a Family Violence Intervention Order.

7. The parties’ original competing parenting applications were listed for final hearing before Mushin J in May 2007.  On 3 May 2007, being the third day of that hearing, Mushin J made orders by consent that the child live with the mother and that the mother have sole parental responsibility for the child’s care.  Further, it was ordered pursuant to paragraph 4 of those orders that the father “not spend time with or communicate with the child”.  At the time those orders were made, criminal proceedings in respect of the father’s alleged violence towards the mother were pending in the County Court of Victoria.

8. In October 2008 the father filed a further application for final orders seeking equal shared parental responsibility and for orders that the child live with, spend time and communicate with both parents. That application was opposed by the mother and application was made on her behalf for an order pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act) that the father not be permitted to file an application without leave of a Judge of the Court.

9. On 27 February 2009 Mushin J dismissed the father’s application and made orders pursuant to s 118 of the Act as sought by the mother. Mushin J noted with concern the significant allegations of family violence, as well as the expert views that it would not be in the child’s best interests for her to see her father. In dismissing the application, his Honour observed that it would not be in the child’s best interests for the father to file further applications for parenting orders and accordingly, made an order in the terms stated above.

10. The father has made two applications to this Court since Mushin J’s orders of 27 February 2009.

11. On 11 August 2010, Mushin J granted leave to the father to file an Initiating Application seeking parenting orders.  That application was dismissed by Mushin J on 10 December 2010. In paragraph 8 of his Honour’s reasons for judgment, Mushin J summarised the allegations of the mother with respect to the father’s violent behaviour which included:-

    ·    The father’s admissions during the May 2007 hearing that in June 2005 he threatened to kill the child;

    ·    The father’s admissions during the May 2007 hearing that he had threatened to kill the mother;

    ·    The father’s guilty plea with respect to a previous threat to kill the mother; and

    ·    An incident in September 2005 when the father is alleged to have:-

    (a)Tailgated the mother’s car;

    (b)Forced the mother off the road and hit her car;

    (c)Followed her from one town to another;

    (d)Verbally abused the mother at a police station;

    (e)Attended the mother’s work place in breach of an Intervention Order; and

    (f)Removed ignition leads from the mother’s motor vehicle rendering it inoperable.

12. In dismissing the father’s application, at paragraph 12 of the judgment his Honour stated:-

    Prior to the resolution of the matter by the parties in May 2007, I expressed very significant misgivings with regard to the father having any communication whatsoever with the child.  Those misgivings were based on several factors.  First, it appeared that the father had no appreciation of the significance of his actions on the mother or, in particular, the child.  Secondly, the evidence suggested that they were both terrified of the father, which I tentatively expressed to be at least understandable.  Thirdly, the absence of any psychological or psychiatric evidence with regard to the father’s mental health constituted a major gap in the father’s case.

13. Mushin J concluded that notwithstanding the father’s attendances upon two psychologists since the 2007 proceedings, there had not been a significant change in circumstance such as to warrant the application to proceed.  In dismissing the application, Mushin J expressed concern that the father did not comprehend the seriousness of the impact of his behaviour upon the mother and the child.

14. Approximately three months later on 11 February 2011, the father filed an Application in a Case seeking a review of orders made by Senior Registrar FitzGibbon on 19 September 2006.  On 10 March 2011, Young J dismissed that application.

15. L continues to live with the mother and has not had direct contact with her father since January 2006. It appears that she has chosen not to contact him despite opportunities to do so through the parents of her school friends, who are friends of the father.

16. It is against that backdrop that the father now seeks leave to apply for orders allowing him to spend time with the child.

MATERIAL RELIED UPON

1. The father relied upon the following material:-

   ·Application in a Case filed 25 September 2014; and

   ·The father’s affidavit filed 25 September 2014.

THE LAW

1. Part XIB of the Act now deals with vexatious proceedings. Previously, such matters were dealt with pursuant to the provisions of s 118 of the the Act”. The order made by Mushin J on 27 February 2009 restraining the father from filing further applications is an order made pursuant to s 118(1)(c) of the Act (as it then was).

2. Rule 11.05 of the Family Law Rules2004 (Cth) (“the Rules”) deals with applications for leave to institute proceedings after vexatious proceeding orders are made. It provides as follows:-

   (1) This rule applies if the court has made an order under:

   (a) subsection 102QB(2) of the Act; or

   (b) any of the following, as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012:

   (i) paragraph 118(1)(c) or subsection 118(2) of the Act;

   (ii) paragraph 11.04(1)(b) of these Rules;

   and the person against whom the order was made applies for leave to institute or continue proceedings.

   (2) An application under subsection 102QE(2) of the Act must be:

   (a) in the form of an Application in a Case; and

   (b) made without notice to any other party.

   Note 1 For the contents of the affidavit that must be filed with the application, see subsection 102QE(3) of the Act.

   Note 2 For rules 11.04 and 11.05 as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012, see Schedule 7 of these Rules.

3. Schedule 7 of the Rules sets out the rules applicable to vexatious proceedings orders made before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) (being the legislation which enacts Part XIB of the Act) and which came into effect on 11 June 2013.

4. Rule 11.05(2) in Schedule 7 of the Rules provides that an application for leave must be made without notice to any other party.

5. Rule 11.05(3) provides that on the first return date of an application for leave to commence a case, the Court may dismiss the application or order the applicant to serve the application and affidavit, and list the application for hearing.

6. Rule 11.05(4) of Schedule 7 of the Rules provides that “[t]he court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success”.

7. Therefore, in determining the father’s application for leave to commence his application, I am required to determine whether or not such application has a reasonable likelihood of success. 

8. If I am satisfied that there is no reasonable likelihood of success, then the father’s application for leave to commence a case must fail. 

9. The final orders made by consent by Mushin J on 3 May 2007 provided as follows:-

   ·That the mother have sole parental responsibility for the long-term care, welfare and development of the child;

   ·That the child live with the mother; and

   ·That the father not spend time with or communicate with the child.

10. In order to persuade me as to his prospects of success, the father must establish that there has been a change of circumstances which would justify the re-opening of the parenting proceedings (Rice & Asplund (1979) FLC 90-725).

11. In Slater & Slater [2004] FamCA 990, O’Ryan J explained the purpose for the procedures required in applications for leave. At [51] O’Ryan J stated that the requirements of the rules in relation to vexatious litigants is to:-

    … prevent the other party from needing to suffer the time and expense of coming to court to oppose numerous unmeritorious applications by the person against whom the order was made.  If the court decides the application may have merit, the applicant must then give the respondent notice of the application.  Thus the respondent will have the opportunity to be heard in relation to those applications that the court has considered to have some possible merit.

WHAT IS THE SUBSTANTIVE RELIEF SOUGHT BY THE FATHER?

1. In his Application in a Case, the father seeks an order in the following terms:-

   That the applicant be granted leave of this Honourable Court to file an Initiating Application in which the applicant will seek orders that he be permitted to spend time with the child.

2. The father did not provide a draft Initiating Application with his Application in a Case.  The affidavit of the father filed in support of that application does little to illuminate as to the final relief sought by the father.  In his affidavit, the father deposes:-

   22.That I would hope that an arrangement could be made whereby I could talk to the child on the telephone and then meet her for a few hours at an appropriate location such as a coffee shop in [T Town] or [U Town].

   23.That if there was a successful meeting with the child and a relationship develops then at the child’s discretion further arrangements could be put in place to further extend the relationship with my ultimate objective being to have a normal father-daughter relationship.

3. At paragraph 35 of the father’s affidavit he deposes as to his desire to share with the child details of his family history, and at paragraphs 36 and 37 he expresses his desire for the child to reunite with her paternal grandmother and other members of the paternal family.

4. During the hearing I raised with counsel appearing for the father the issue of his failure to articulate the orders he sought, assuming that leave to commence proceedings was granted.  Counsel for the father was not able to state with precision the relief sought by the father.  However it was submitted on behalf of the father that leave to commence proceedings was sought as, given the child’s age, this was likely to be the last opportunity for the Court to determine the issue of time spent between the father and the child. 

5. The failure of the father to articulate the orders sought by him severely hampers the ability of this Court to assess the prospects of success of the father’s application. 

6. I am satisfied that the omission of any detail as to the final orders sought by the father indicates that little thought has been given by him to the realities of the child’s current circumstances, and in particular that she is now a teenage girl, presumably in secondary school who has had no communication, nor spent time with, the father since she was aged approximately five years.  the child has no recent experience of her father and any knowledge of him is likely to be shaped and coloured by her limited memory of her early childhood experiences and information from her mother; the father’s own evidence and the reasons for judgment of Mushin J dated 10 December 2010 indicate that the child’s picture of her father is likely to be that of a violent and threatening man.   

7. In his affidavit, the father deposes as to the relationship previously enjoyed by the child with her paternal family.  However, the reality for the child is that she has had no contact with those family members since she was four or five years of age.  

8. Whilst conceding at paragraph 16 of his affidavit that he has no knowledge as to the child’s attitude towards him, the father then provides some hearsay evidence as to the curiosity said to be expressed by the child to friends of the father as to the father’s health and circumstances. 

9. In my view, little weight can be attached to that evidence in circumstances where the makers of the statements are not named and there is no evidence as to dates of the alleged conversations or the circumstances in which they occurred.  What those statements do indicate is that the child has knowledge of her father’s whereabouts and likely has the ability to initiate contact with him should she wish to do so; there is no evidence that she seeks to initiate time with the father presently.

10. If leave were now granted, a determination of the father’s application to spend time with the child would likely require close consideration of any views expressed by the child, given her age.  Indeed, having regard to her age, there is a real prospect that any orders made would be subject to the child’s wishes. 

11. In his reasons for judgment dated 10 December 2010, Mushin J refers to the evidence filed on behalf of the father in support of that application.  That evidence included a psychological evaluation of the father by Dr V, clinical and forensic psychologist, and a report of Ms W, psychologist, with whom the father consulted on eight occasions between January 2010 and May 2010.

12. In the current proceedings, the father has relied upon the same reports of Dr V and Ms W.  The report of Dr V dated 18 September 2009 is annexed to the father’s affidavit as Exhibit RW1 and the report of Ms W dated 8 June 2010 is annexed as Exhibit RW2 to that same affidavit.

13. In his reasons for judgment dated 10 December 2010 Mushin J undertook a careful analysis of the expert evidence then filed on behalf of the father (and still relied upon by him in these proceedings).  At paragraph 31 of the judgment Mushin J expressed concern at the singular fleeting reference of Ms W to the father’s “threats to kill”.    Further, at paragraph 32 of the judgment, Mushin J noted the failure of Ms W to provide “any real detail of what occurred before this Court” during the parenting proceedings. 

14. Later in his judgment Mushin J noted:-

    48.I have not yet commented on the statement by the father to [Ms W], quoted in her report:

    …to hurt or harm his ex-partner in any way is to hurt his daughter.  His best revenge is to move on with his life.

    That the father should be talking about revenge in any context is most concerning.  Regrettably, it is in accordance with other statements which he has made in the past and his longer term overall approach to this matter.  In my view, revenge should be the very last thing which he should be considering in the context of his previous attitudes to both the mother and his daughter.

    49.I have a clear and vivid memory of the mother during the original trial of this matter.  I observed her to be in a very high state of fear of the father, both for herself and their daughter.  She was entitled to be in fear.  He had threatened to kill both her and the daughter.  He had also rammed her car in at least the hearing of their daughter which was undoubtedly a terrifying experience for both of them.  He had perpetrated the verbal abuse and anger on many occasions against the mother to the knowledge of the child.  He has admitted all of those matters. 

15. As noted above, his Honour determined that the father’s application for leave to commence proceedings should be dismissed. 

16. The father continues to rely upon the reports of Dr V and Ms W in support of his current application.  At paragraph 30 of his affidavit the father deposes:-

    That my physical, mental and psychological state of health is excellent at the present time and I am not undergoing any course of mental health treatment or seeing any medical practitioner or professional for any condition.  

17. From the father’s perspective, it would appear that little has changed since the judgment of Mushin J in December 2010.  There is no evidence before me that the father has sought any form of ongoing counselling or support which would indicate that he has any understanding as to why his application for leave, determined in December 2010, was unsuccessful. 

18. Seemingly, the father’s insight as to the inappropriateness of his actions or the impact of those actions upon the mother and the child has not improved or developed since that hearing. 

1. In relying upon the reports of Dr V and Ms W the father deposes:-

   31.That in my whole life I never sought treatment for any psychological, sociological or psychiatric condition…Whilst I acknowledge that my behaviour was extreme and concerning at the time, I believe that [Dr V and Ms W] confirm my belief that I did not have any psychological disposition requiring ongoing treatment.

2. That evidence is most concerning when one has regard to the matters contained in those reports.  For example, in his report dated 18 September 2009, Dr V observes as follows:-

   ·With respect to Family Court issues:-

   [The father] stated that between 2006 and 2009 he has attempted to obtain time with [the child].  As indicated there have been multiple legal proceedings.  His view is that any reports through the Family Court are now prejudiced against him. 

   ·Under the heading “Mental Health Issues”:-

   [The father] feels that he has been wrongly done by.  While he acknowledges to some degree his own part in these proceedings, without the full facts of the case as would be available in the Courts, it is uncertain to what extent this represents him not having clear insight into these issues.

3. Given the admissions made by the father with respect to his conduct, as noted by Mushin J in his judgment delivered in December 2010, it is in my mind significant that the father only partially acknowledges to Dr V his responsibility for the course previous court proceedings have taken. 

4. The report of Ms W dated 8 June 2010 does little to assuage those concerns.  Under the sub-heading “Psychological Testing” Ms W observes as follows:-

   I would also agree with [Dr V’s] comments that ‘[Mr Warner] presents as intense and emotional, and it is possible to consider that at times this intensity and emotionality may be experienced as threatening’ although not intended.

5. In the penultimate paragraph at page one of her report, Ms W observes:-

   My initial impressions of [Mr Warner] were not positive.  He presented as man in his forties, of average weight and height for his age.  He was dressed in jeans, flannelette shirt and work-boots which was appropriate for the situation weather.  As he attempted to convey all that had happened over the last five years he appeared blaming, cynical, victimised, betrayed, and embittered.  He appeared to alternate between idealisation and devaluation of his ex-partner [Ms Houseman], his empathy seemed superficial, he lacked remorse and he appeared controlling and angry. 

6. Whilst Ms W stated that she had re-considered her initial assessment of the father, she nonetheless observed at page two of her report that the father “presents as somewhat naïve about behavioural expectations in different settings, and brings the same presentation to all settings.  While this is representative of his authenticity, it also leaves him vulnerable to misinterpretation and negative judgement”.  Ms W also noted that the father has “intense emotions about the loss of his daughter and significant frustrations in understanding the Court process”. 

7. Of greater concern is the apparent omission of significant details regarding the family’s history by the father to Ms W.  For example, in the fourth paragraph at page two of her report Ms W notes:-

   [Mr Warner] denies any history of violence in their 15-year relationship and is clearly hurt by his ex-partner’s allegations.  At times he appears to struggle in coming to terms with the person he knew for 15 years and the person he has appeared against in the Court system.  [Mr Warner] claims that he has withheld information in Court in an attempt to protect [Ms Houseman] at times to his own detriment, however he is now willing to be more forthcoming.

8. Whilst the father has reported to Ms W the incident where he rammed the mother’s car, it appears that he has not acknowledged to Ms W his admissions of threats to kill the mother and the child or indeed any of the other allegations of violence raised against him in the context of Family Court proceedings.

9. The observations of Ms W as to the father’s demeanour, the failure of the father to inform Ms W of the allegations with respect to his conduct towards the mother and the child, and the fact that Ms W has not had the opportunity of observing the father with the child or interviewing the mother or the child diminish the weight to be attached to her summary and recommendations as to the time the father should be permitted to spend with the child.

10. The father presents no more recent expert evidence as to his current psychological health.  Importantly, the father presents no expert evidence which would assist the Court to assess whether or not he has developed any greater insight as to the potential impact of his conduct as compared with when the matter was last before the Court in 2010.

11. The absence of such important evidence means that I cannot be satisfied that there has been any change of circumstance sufficient to warrant a re-opening of the parenting proceedings.

12. I have no doubt, having considered the material filed on behalf of the father, that the events leading up to the making of final orders that he spend no time with the child have been a source of great distress and sadness to him.  Equally, I have no doubt that those circumstances have had a dramatic and devastating impact upon the child.  However, orders were made in 2009 to protect the child from the impact of further proceedings.  I must consider whether the father’s application has a reasonable likelihood of success. 

13. In considering the merits of the father’s application I have regard to the considerations articulated by Kirby J in the decision of Re Attorney-General (Commonwealth); Ex parte Skyring (1996) 135 ALR 29 where, at 31-32, his Honour said:-

    First, it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit.  Vigilance, and not impatience, are especially required where that person is not legally represented. 

    Secondly, it is regarded as a serious thing in this country to keep a person out of the courts.  The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction.  It is a rare thing to declare a person a vexatious litigant…

    Thirdly, the court must never shy away from the determination of a point sought to be argued simply because it may have major ramifications…

14. Although an application for leave to commence proceedings is not an application for a parenting order as defined in s 64B of the Act, such that the paramountcy principle established pursuant to s 60CA is invoked, I am conscious of the views of the High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172 at [86] where McHugh, Gummow and Callinan JJ referred to the “constant shadow” of the paramountcy principle in child welfare cases. That is, in the determination of the leave application made by the father, I should have regard to the potential impact of such proceedings upon the child, she being a child who has been the subject of litigation in this Court since 2005.

15. I also have regard to the fact that, were I to grant leave to the father to commence his substantive application, such application is unlikely to be heard until 2016, when the child will be aged approximately 15 years. Having regard to all of the above matters, and in circumstances where the father does not particularise the orders he seeks with respect to time with the child, I am not satisfied that any application for time has a reasonable likelihood of success.

16. Further, having reviewed all of the father’s evidence, I am satisfied that little has changed since this issue was last before Mushin J in 2010. 

17. The father’s evidence indicates that the child has knowledge of his whereabouts and an ability to make contact with him should she wish to do so.  Given her age, it is likely that any order by the Court for her to spend time with the father would be subject to her wishes in any event. 

18. Having regard to all of the above matters I am satisfied that the application of the father has no reasonable likelihood of success.  Accordingly, I am satisfied that there is no basis for a granting of leave to proceed.  The orders I make are as follows:-

    (1)That the applicant’s Application in a Case filed 25 September 2014 be dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 23 March 2015.

Associate:  

Date:  23 March 2015