Watson and Morton (No. 2)

[2008] FamCA 214

FAMILY COURT OF AUSTRALIA

WATSON & MORTON (NO. 2) [2008] FamCA 214

FAMILY LAW - CHILDREN - parenting – application for leave by person to whom s.118 order applies - no likelihood of success - application dismissed.

Family Law Act 1975 (Cth), s 118
Family Law Rules 2004, rule 11.05

Zabaneh (1986) FLC 91-766;
Ex parte Skyring (1996) 135 ALR 29

HUSBAND: Mr Watson

WIFE: Ms Morton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7529 of 2007

DATE DELIVERED: 5 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 5 March, 2008

REPRESENTATION

THE HUSBAND: In person

THE WIFE

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms. Martin,

Martin Irwin & Richards

Orders

1. That the application for leave filed by the husband on 30 January, 2008, and amended on 7 February, 2008, be dismissed. 

1. That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal. 

1. That the reasons for judgment this day be transcribed and copies made available to parties. 

1. That 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 WATSON & MORTON to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7529 of 2007

MR WATSON

Husband

And

MS MORTON

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is the adjourned listing of an application brought by the father on 30 January 2008 in which he sought to spend time with the two youngest children of the marriage being, J, born in July 1994 and K, (“the children”) born in September 1996.  In that application he sought leave to file an application for an order that he spend time with the children on each alternate weekend and at such other times as agreed by the independent children's lawyer.  That application came before me on 7 February.  After some discussion with the father, particularly referable to a number of applications for leave filed by him in late 2006 and early 2007, I gave him leave to amend the application filed on 30 January 2008, to seek orders other than those initially sought. 

1. It should be said that the father saw himself at that time as having no option but to accept the reframing of orders in the terms suggested.  That was a realistic assessment as the court would have had no option but to dismiss his application for leave on that day had the application not been reformulated.  Reformulated, he sought leave to file an application seeking that the independent children's lawyer be appointed or reappointed, that he spend two periods of time with the children for the purpose of saying goodbye (taking into account the evidence of his terminal illness) and the length of such time and the location be as determined by the independent children's lawyer.  The application also sought leave to seek such other orders as the court found appropriate, which left open the potential for some additional orders. 

1. At that time I ordered that a copy of the application be served by the court on the wife, but she be relieved of any obligation to file a response or affidavits pending further order.  She needed to be advised of the application because I had made an order that a family consultant, employed by the court, prepare a report as to the children's views about spending time with the father as sought, and more generally.  Further consideration of the father's application was deferred until the report was prepared.  

1. That report was prepared as a matter of urgency.  Ms W met with both parents briefly, and with the children on 20 February.  She met again with K, in the company of her aunt and the mother, on 21 February.  Her interview with the father was on 8 February.

1. Before turning to Ms W’s report it is necessary to very briefly summarise the background. J and K are the youngest of the parties’ four surviving children. The two older siblings are A, born in August 1990 and E, born in August 1992. The parties separated in May 1997. Proceedings were initially instituted a few months later, in August 1997, and there have been many orders and applications since. On 13 October 2003, an order was made pursuant to s.118 of the Family Law Act 1975 pursuant to which the father requires leave if he is to bring any application for orders in respect of any of the children.

1. I should say that orders made by Guest J on 22 October 2005 attempted to initiate some contact between the father and the children.  The father has referred in his material before me to about ten years of no contact, but there have been isolated periods of contact.  There was contact on one occasion after Guest J made that order;  to say it was unsuccessful is something of an understatement.  The father has described it as “kerfuffle”, and submitted that the problems were not helped by A upsetting his then defacto wife, who is now his wife.  He views events that day as an unfortunate hiccup in a day which should have been, and he believes still could be, a relatively straightforward resumption of contact with his children.

1. An application was made by the father on 7 June 2006, seeking leave to apply for new contact orders. That was dismissed by Carter J on 20 November 2006. At that time her Honour restrained the father from bringing any further applications about the children until 1 November 2009. The husband appealed against those orders and was successful to the extent that the Full Court, on 30 May 2007, found that the order restraining the father from bringing an application until 1 November 2009 should not have been made. That finding left in place the order made under s.118 on 13 October, 2003. The Full Court did not interfere with her Honour's dismissal of the father’s application for leave to issue proceedings.

1. Another application was then brought by the father and listed before Young J.  He dismissed that application on 1 August 2007.  In that application the husband had sought leave to file an application for “fifty-fifty parental responsibility” and all aspects of parenting, and any other urgent orders thought appropriate.  He supported that application with a very lengthy affidavit, sworn on 3 July 2007, to which I adverted in a ruling delivered by me on 7 February, 2008. 

1. On 1 August 2007 Young J dismissed the father’s application for leave.  Another application was then filed by the father on 26 November, 2007.  It came before Bennett J and was dismissed by her on 13 December 2007.  In it the father sought “the constant company” of his teenage children, noting that they had the last ten years to catch up on and the next 20 years to pack into a very small space.  Some month and a half after Bennett J’s decision, the father filed the application which is before me.

1. For the purpose of these proceedings, I accept the evidence the father has adduced of his health, and his terminal illness.  Earlier prognoses have, fortunately, proven pessimistic.  As he said, he is “still here”, but his prognosis is not good.  It is clear he is keen to see his children and to put important aspects of his life in order in the time he has left.

1. The family report prepared by Ms. W is a comprehensive, insightful and sensitive report.  It notes Ms W’s assessment of the mother's lack of capacity to act positively at this time to change the views expressed by her children, and the introduction by the mother of inflammatory material at a strategic point, when K showed some indication of wavering and was tentatively speaking of spending some time at the father’s farm in the company of a trusted adult.  It was at that time that the mother advised the children of their father's marriage to his now wife;  the children do not have a positive view of their father’s wife and this information was guaranteed to steel them against their father.

1. However, these proceedings are not about things the mother has, or has not done.  The question is whether the father should have leave to proceed with his application to spend time with the children.  Ms W’s evidence is clear.  The situation is tragic for the father, who has done everything he feels he can, and more, to see his children.  But it is equally, if not more, tragic for all of the four children in the family.  They are in the position of being caught in the midst of conflicting loyalties, through no fault of their own.  They have no apparent way out.  Whatever they do, they are likely to disappoint someone and they do not have adult life experience to help them deal with that dilemma.  In her opinion, the choice and strain must be taken off all the children.

1. The children are progressing well generally, but are very troubled by the predicament.  Ms W assessed J as a sensitive, intelligent boy who believed he had thought through the issues that his father's diagnosis raised for him.  He showed resentment at the constant intrusion in his life of the father's litigation.  He showed an awareness of the emotional and financial costs of litigation, and of feeling belittled in his father's company.  He was able to acknowledge some positive experiences, but saw them as destined to be always clouded by unhappier experiences. 

1. Ms W noted that J cannot, even as a mature 13-and-a-half-year old, know what it is to face the death of his father, whether cherished or not, but J made it very clear that he was not prepared to have any contact with his father.  He has chosen not to speak with, or write to, his father at this point. 

1. K, at 11-and-a-half, is also a sensitive child but she is less mature, and struggling with considerable confusion and ambivalence.  She was able to express compassion for her father.  She did not believe she had the bond with her father that he would like to believe she had, and she became increasingly resentful of the guilt that she felt was being put on her.

1. Ms W noted K was only a few months old when her parents separated and she has no memory of family life with both parents on the farm.  She told Ms W she wanted to be an automobile mechanic, and spoke positively about the farm, but in terms of open space and animals, rather than responses to the father and his wife.  After her mother's intervention, and advice of her father's recent marriage, K’s attitude hardened.  She stated firmly she would not see her father or go to the farm and while she did come back the next day to have some further discussion, she came with her maternal aunt and her attitude remained fixed.

1. The father today has spoken of the same certainty he expressed earlier;  he is convinced that if he could see the younger children, and overcome what he sees as minor obstacles to them having a good time with him, the older children would then want to join in.  Understandably, he spoke of aspirations for J and the other children to keep the farming enterprise running, and of his hope that his wife would be able to play a constructive role in the children's lives.  From his perspective, this case has gone very wrong.  He sees only one way of sorting out that problem, which is that he be able to pursue and obtain time with the younger children, initially, and then with the older children. 

1. I am grateful to the independent children's lawyer for her thoughtful submissions.  In the light of the family report, she submits that the father's application should be dismissed.  The children's views are strong and clear.  The ICL has ongoing concerns about what the father is actually seeking and I must find substance in that concern.  As I said in the earlier judgment, the father reluctantly agreed to the reframing of his application for leave, but he made his genuine views clear when he spoke to Ms W.  Then, he was adamant that for the children's wellbeing to be addressed, it is vital that they either live with him, or spend substantial weekend and holiday time with him, to learn about running the farm, and experience him as a father.  This “movement” in the orders sought by him is something of which the children spoke, when describing their experience of him to Ms. W. 

1. The ICL has submitted that the children should not be subjected to further litigation, because there is no likelihood of success. Rule 11.05 of the Family Law Rules 2004 specifically applies if an order has been made under s.118 of the Family Law Act 1975, which it has in this case. The rule provides that the court must not grant permission to start or continue a case unless it is satisfied that the case has a likelihood of success. The purpose of the procedure is to meet the potential for harassment by frivolous or vexatious applications to be continued by filing and serving applications for leave, which can reproduce the same vexatious cycle which gave rise to the s.118 order. That was referred to as long ago as 1986 in Zabaneh (1986) FLC 91-766; see generally Ex parte Skyring (1996) 135 ALR 29.

1. I have heard the father’s heartfelt submissions.  However, on the evidence before me, I cannot find that there is any likelihood of success of an application that he spend time with the children.  In those circumstances, I have no option but to dismiss the application. 

1. The independent children's lawyer has expressed her willingness to pass on to the children a video (were the father to make one, as suggested), a journal of his farming activities, or letters to the children.  That offer is on the  table.

I certify that the preceding
21 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the            day of             2008.

…………………………………………
Associate.