Watson and Morton (No. 2)

[2007] FamCA 1593

FAMILY COURT OF AUSTRALIA

WATSON & MORTON (NO. 2) [2007] FamCA 1593

FAMILY LAW – CHILDREN – Child related proceedings – Vexatious litigant with very reduced life expectancy refused leave to institute further proceedings in order to see his children – Relevant principles 

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

APPLICANT: Mr Watson

RESPONDENT: Ms Morton

INDEPENDENT CHILDREN’S LAWYER: Ms K. Martin

FILE NUMBER: MLC 7529 of 2007

DATE DELIVERED: 13 December 2007

PLACE DELIVERED: Melbourne

ORDERS OF: Bennett J

HEARING DATE: 13 December 2007

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms K. Martin

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Martin Irwin & Richards

Orders

1. That the father’s application in a case filed on behalf of the father on

   
   

   26 November 2007 in which he seeks leave to institute proceedings for parenting orders in relation to the children A born … August 1990, E born … August 1992, J born … July 1994 and K born … September 1996 be and is hereby dismissed. 

2. That the independent children’s lawyer send a copy of my reasons for judgment to Ms C social worker. 

3. That I discharge the Order made 5 December 2007 requesting the appointment of an independent children’s lawyer. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7520 of 2007

MR WATSON

Applicant

And

MS MORTON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 13 December 2007 I dismissed the father’s application for leave to institute proceedings under the Family Law Act 1975 for orders in relation to the four children of his relationship with Ms Morton (“the mother”).  I said that I would deliver reasons for my decision subsequently.  These are those reasons. 

2. An earlier order was made by Brown J on 13 October 2003[1] which is still current and in effect.  That order precludes the father from commencing certain proceedings without leave of the court and does so in the following terms:-

   (2)That pursuant to s.118 of the Family Law Act (1975) the husband be and is prohibited, without first obtaining leave of a court having jurisdiction under the Family Law Act (1975), from instituting proceedings under the Family Law Act (1975), other than an appeal against orders made this day, in respect of parenting orders relating to the children of the marriage or any of them, being [A], born […] August 1990, [E], born […] August 1992, [J], born
   

   [1] [2003] FamCA 1585

   […] July 1994 and [K], born […] September 1996, and that any application for leave pursuant to this paragraph be listed ex-parte, and not be served upon the wife and/or child representative save pursuant to court order.

3. The father has not spent time with the children since 2005 when the court ordered contact arrangements (as such arrangements were then known) broke down.  The father is ill and wants to see and be involved with his children before he dies. 

4. The father’s application was filed on 26 November 2007 and at paragraph 6 the father describes the orders which he seeks as follows:-

   1.  Constant company with all my teenage children.

   We have the last ten years to catch up on and the next 20 years to pack into a very small space. 

   2.  Should the children’s reluctance still be relevant I am certain stat a quiet talk with Justice Guest would soothe the matter.  

5. The orders are not stated with precision but clearly the purport is that the father wants to spend time with his children (all of his children notwithstanding that K is only 11 years old and not yet a teenager).  The application first came before me in the duty list on 5 December 2007.  In effect that was an ex parte hearing although the independent children’s lawyer, Ms Martin, was linked in by telephone for some of the hearing and appeared amicus curiae.  On that occasion I made various orders including a request for the re-appointment of Ms Martin as independent children’s lawyer, service of the documents on the mother and the independent children’s lawyer, procedural orders for the filing of documents and –

   (1)      That the father’s application filed 26 November 2007 stand as an application by the father for leave to institute proceedings for parenting orders and for a judicial conference to be convened by Guest J between the father and the children as a mater of urgency. 

   […]

   (2)      That, if the independent children’s lawyer considers that it would be in the best interests of the children (or any of them) to do so, the independent children’s lawyer discuss the father’s medical condition and prognosis with the father’s treating doctors starting with Dr [M] of the […] Hospital prior to the adjourned date. 

6. The reference to Dr M has its basis in a letter dated 24 October 2007 from Dr M and annexed to an affidavit sworn by the father on 23 November 2007.  Omitting formal and irrelevant parts, Dr M wrote:-

   [The father] has recently been diagnosed with terminal cancer.  For

   
   

   [the father] this will mean a severely diminished life expectancy of perhaps a few month[s], rather than years.  During his stay he expressed a wish to find his teenage children, which he feels may be living in Gippsland.  Prior to admission he was undergoing legal proceedings to find his children, with a court case planned for February 2008.  At (sic) his time here is now quite limited we hope that you will be able to bring the proceedings to an earlier date so he will have some chance to see his children before his death. 

7. There has been litigation relating to the children for a long time now, specifically, every year since August 1997.  In the last 18 months, the Family Law Act 1975 (Cth) (“the Act”) has been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”), the provisions of which came into operation on 1 July 2006. Certain procedural elements of the amending legislation which provide for litigation to be conducted in a less adversarial manner apply to the current proceedings.

8. Returning for a moment to the role of Ms Martin. As indicated, Ms Martin was re-appointed as the independent children’s lawyer for the children within the meaning of Division 10 of Part VII of the Act. As such, her role is to form an independent view, based on available evidence, of what is in the children’s best interests and then act in these proceedings in what she believes to be the best interests of the children.[2]  She is not a legal representative retained by the children and she is not bound by any instructions from children.[3]  The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by children (or any of them) are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings[4] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[5]  By the time of the hearing on 13 December 2007, Ms Martin had spoken to the children as well as to medical practitioners treating the father. 

   [2] s 68LA(2) Family Law Act 1975 (Cth).

   [3] s 68LA(4) Family Law Act 1975 (Cth).

   [4] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [5] s 68LA(5)(e) Family Law Act 1975 (Cth).

9. At the hearing, the father represented himself.  He spoke softly but emphatically.  The mother, who was previously represented by Ms C Toose, was also self represented and spoke in a very controlled manner.  The hearing was conducted by telephone link which enabled the mother and

   
   

   Ms Martin to remain in Mildura and for the father to remain at home in North West Victoria. 

10. I was informed that since her re-appointment the independent children’s lawyer has spoken to Dr M and the father’s treating doctor, Dr R, as well as the hospital based social worker, Ms C.  She saw the children at her office on Tuesday 11 December 2007 and interviewed them together as well as seeing K separately.  Ms Martin said that she offered all the children an opportunity to speak with her individually but only K wished to do so and only then on the basis that her desires and statements were kept in confidence.  I thought that it would be fair for the father to have the benefit of knowing what course the independent children’s lawyer considered would meet the best interests of the children before being called upon to particularise his application.  There was no opposition to Ms Martin making known her preliminary views and she did so. 

11. Ms Martin said that all of the children presented as being distressed.  They are aware of their father’s application for leave to institute more proceedings in order to see them and that he is terminally ill.  The independent children’s lawyer said that the children are acutely aware of the ongoing proceedings and “have a great dislike for the court system”. 

12. Ms Martin said that the two older children, A (17) and E (16) want nothing whatsoever to do with the court proceedings, the father and have “very strong views … very emotional views” about the matter and that any further assessment of the older children by a court based family consultant would, of itself, be harmful to them given the relentless nature of proceedings over the last 10 years and the entrenched nature of A’s and E’s opposition to the court and to the father.  

13. Ms Martin submitted that I should dismiss the father’s application for leave insofar as he seeks to institute proceedings in relation to the older two children.  She submitted -

    “they [A and E] are not willing to participate in the court process.  They are of an age where they are old enough, in my submission, to be excluded from the proceedings and they are old enough to make their own minds up as to what they should do. Perhaps [the father] would consider discontinuing his application with respect to the older children, and if your Honour would consider granting sufficient time for the younger two children to be assessed professionally, then in my submission that would be in the best interests of the children.”  

14. Ms Martin suggested that Dr P would be an appropriately qualified person to assess J (13) and K (11).  He is a psychologist who is local to the area and the children are familiar with him.  

15. Ms Martin also informed the court that her discussions with the social worker included the possibility of the hospital assisting the father with preparation of an audio visual recording of himself which can be directed to the children.  

16. The first task for me is to discern what substantive parenting orders the father would seek if leave were granted to him to institute proceedings. 

17. There was considerable discussion between the court and the father.  I detected an element of aiming for the stars but being prepared to accept something closer to earth.  The father’s desire is to have all four of his children live with him until his medical condition makes that impossible or impracticable.  More realistically, he seeks unsupervised day and overnight time with the children in which his farm is their home base.  He was accepting of giving the older two children a choice of whether or not to attend but would not discontinue his application in relation to them.  The father was not in favour of having any of the children assessed by Dr P and would not have a bar of making a recording of himself to be given to the children.  

18. Other indicators of the orders which the father would seek if given leave to institute proceedings are found in his statements about how and why the children need to spend time with him.  He proposed spending time with the children “for company and love and affection” and so he and they can make up for all the experiences which they have missed over the last 10 years.  He says, “They can come for a run to Melbourne with me next time I go, try to get a week every now and again on the beach or some holiday spot so I can keep the farm going so there’s an income for everybody.”  

19. The father informed me that he wants “to bring [himself and the children] back as a little family unit that understands exactly what happens with the farm and a true picture on both sides [of the family law dispute] not just one side which is all they have got at the moment and that’s not fair. It’s been wrong all the time.”  The father wants an opportunity to “explain the situation [over the last 10 years] in every detail, every question that they need to ask has to be answered.” 

20. The father described using the farm as a means of instructing the children in money matters and equipping them for later life.  The father sees it as imperative that he “explain the operation, the way everything works here, what the alternatives are towards selling the farm and buying houses or whatever. […] the older ones particularly, must know the value of money and what they can do and where they can get a deposit from and the best way of doing it, and if I have to let them do it on their own, they’re going to get stung.” 

21. It was only in receiving the father’s description of what he expected would flow from further proceedings that I could be sure of the breadth of orders which the father would seek if he was given leave to re-litigate.  Having heard what he has had to say, the application which he filed is more apt than

    
    

    I originally thought. 

22. Finally, the father had the following to say about leaving an audio visual recording of himself for the children:-

    “that’s completely unacceptable; unacceptable under all conditions, and I’m very, very upset about it. I want my kids to kiss and to cuddle and to kiss and to talk to and sit on my knee and tell them stories. Please don’t do that video idea. Please, please. I am very, very – that would be one of the worst things I’ve ever had said to me as a father, and I don’t understand that one […] I find that similar to [Mr P].”

23. The relevant legal principles were succinctly set out by Carter J in a judgment in earlier proceedings between the parties delivered at Mildura on 20 November 2006[6] and in which her Honour refused an application by the father for leave to apply for new orders to enable him to spend time with at least some of the children. Subsequently, the Full Court, comprising Coleman, May and Thackray JJ approved, at least by implication, of Carter J’s description of the legal principles and her application of them to the facts of that case. I, with respect, agree. I adopt as correct Carter J’s description of relevant legal principles pertaining to the granting of leave in these circumstances. I propose to follow her Honour’s reasoning in my consideration of this present application of the father. For ease of reference, I extract below the relevant passages being paragraphs 20 to 29 (inclusive) of Carter J’s reasons, as follows:-

    [6][2006] FamCA 1377

    Legal Principles

    20.      Rule 11.05 of the Family Law Rules provides:

    “(1)     This rule applies if:

    (a)      the court has made an order under subsection 118(1)(b) or paragraph 11.04(1)(b) and;

    (b) the person against whom the order was made applies for permission to start or continue the case.

    (2)      The application must be in Form 2 and must be made without notice to any other party.  [There is a note which says that an applicant must file an affidavit stating the facts relied on to establish the need for the orders sought (see rule 5.02)].

    (3)      On the first court date for the application:

    (a)      the court may dismiss the application or

    (b)      the court may:

    (i)       order the person to:

    (A)     serve the application and affidavit;  and

    (B)     file and serve any further affidavits in support of the application;  and

    (ii)      list the application for hearing.”

    21.      Importantly r 11.05(4) states:

    “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.”

    22.      It should be noted that r 11.05(4) states a presumptive refusal of leave unless the Court is satisfied that the case has a reasonable likelihood of success.  The onus is on the applicant, in this case the husband, to satisfy the Court that his case does have a reasonable likelihood of success.  This does not mean to my mind that he must establish that the case will succeed, just that it has a reasonable likelihood of success.

    23.      In considering applications for leave to start a case the reasons for which a person is precluded from bringing proceedings without leave should not be forgotten.  The purpose of s 118(1)(c) and r 11.04 is to prevent multifarious overlapping applications between the parties which amount in essence to a harassment of the other party and an abuse of the process of the Court and which involve enormous expense for both the parties and the Legal Aid office.

    24. That was a statement made by the Full Court in Zabaneh (1986) FLC ¶ 91-766.

    25. Additionally frivolous or vexatious proceedings may also waste the Court's resources and divert such resources from attending to disputes that are properly before the Court. At the same time it must be recalled that it is a serious matter to deprive a person of access the courts of law. This point was made by Kirby J in The Attorney-General (Commonwealth); Ex parte Skyring (1996) 135 ALR 29. That case concerned a litigant who was precluded under the High Court Rules from commencing further proceedings without leave of the Court, or a Justice of the Court. Mr Skyring did seek leave and in the course of his Judgment Kirby J had this to say:

    “(8) I approach the application by Mr Skyring for leave to proceed on the three proceedings which I have in general terms described with the following considerations in mind.  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. 

    …

    Thirdly, the court must never shy away from the determination of the point sought to be argued simply because it might have ramifications.

    … ”

    26.      I bear in mind Kirby J's observations in the determination of the husband's applications before the Court.

    27. In Rice v Asplund (1979) FLC ¶ 90-725 the then Chief Justice, her Honour Evatt CJ with whom Pawley and Fogarty JJ agreed made it clear that an applicant who seeks to change parenting orders must satisfy the Court that there is some changed circumstances to justify such a serious step, some new factor arising or some factor not disclosed at the previous hearing which would have been material.

    28. In D v Y (1995) FLC ¶ 92-581 a differently constituted Full Court, this time consisting of Nicholson CJ and their Honours Baker and Tolcon JJ referred to the general principle that a fresh application should not be entertained unless there exists a substantial change of circumstances saying that that principle has been consistently stated. They went on to say that to embark on fresh consideration of issues relevant to contact soon after orders have been made, must be in circumstances where the Court finds that there exists some material change, something other than that which could be anticipated in children's lives, such as their getting a little older. In other words, there must be a reason for the Court to look at the issue again. It is not to be done just because a parent is unhappy with the earlier outcome.

    29. The Full Court in Bennett (1991) FLC ¶ 92-191 establishes that it is appropriate at times to determine the question on a threshold issue.

1. I will deal with the father’s application as a threshold issue.

2. As indicated, the Family Law Amendment (Shared Parental Responsibility) Bill which took effect on 1 July 2006 amended the Family Law Act 1975 to provide that the court must give effect to various principles in the exercise its discretion in child related proceedings.  The present case is a child related proceeding.  The five principles are set out in s 69ZN as follows:-

   Principle 1

   (3)  The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

   Principle 2

   (4)  The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

   Principle 3

   (5)  The third principle is that the proceedings are to be conducted in a way that will safeguard:

   (a)  the child concerned against family violence, child abuse and child neglect; and

   (b)  the parties to the proceedings against family violence.

   Principle 4

   (6)  The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

   Principle 5

   (7)  The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

3. I have applied those principles to the conduct of these proceedings on both

   
   

   5 and 13 December 2007.  The father has not been required to amend his application in writing, it has been dealt with urgently and by telephone which is convenient and even handed to all parties.  I appreciate that Victoria Legal Aid actioned my request very promptly and that, once re-appointed as independent children’s lawyer, Ms Martin has attended to the matter diligently.  However, the father is still responsible for the conduct of his own application.  The father has made it clear that he wants to apply for orders which will significantly alter the care arrangements compulsorily for the younger children, J and K, and as a matter of choice for A and E.  It is the application which the father proposes that I must take into account when considering what circumstances have changed and the father’s prospects of success.  In particular, it is not for me to rope the father (and indeed the mother, children and independent children’s lawyer) into a new set of proceedings directed at more realistic or child focussed relief that that which the father wants to pursue.  

4. The father has been diagnosed with a terminal illness.  It is accepted that the father is undergoing chemotherapy with favourable results.  His death is not imminent but any decline in his health is likely to be sudden.  For the purpose of these proceedings, it is accepted by all parties that the father’s life expectancy is in the vicinity of seven to nine months.  I take into account that it is more likely than not that the father will not live past August 2008.  

5. I am satisfied that the father’s terminal illness is a change of circumstances not contemplated when the last parenting orders were made in this case by Benjamin J on 10 May 2006 or when the s 118(1) order was made by Brown J in 2003.  The most recent orders of Benjamin J discharged the then extant orders for contact (as it was then called) between the children and the father which meant that the father had no enforceable entitlement to see the children.  I also accept, however, the submission of the independent children’s lawyer that many circumstances have remained constant including the opposition of the older children to take any part in the proceedings and the reasons which led to the determination by Benjamin J in May 2006.  I do not detail here a history of the matter since 1997 or the father’s various applications for leave.  Nor do

   
   

   I examine the reasoning and relevant findings of Benjamin J in 2006 against the circumstances which now prevail because it is the father, and no other party, who bears the onus of satisfying me that there has been a significant change of circumstances and that the application which he seeks leave to institute has a reasonable likelihood of success. 

6. I take into account that the father’s reduced life expectancy means that there is a very limited opportunity for the father and the children to see, spend time with and/or to farewell each other.  If it does not happen now, it may never happen.  

7. The father’s ill health is not only of temporal relevance.  I also have regard to the effect on the children of the father’s impending death and how as adults they may look back on their attitude and behaviour toward the father at this time and the fact that it may be a cause for unresolvable regret for them.  

8. The husband’s medical condition and its tragic consequences is a significant but not determinative factor in my consideration of his application for leave. 

9. I also have regard to the history of the matter outlined to me by the father orally and in writing and by the independent children’s lawyer in her submissions and, to a much lesser extent, the mother.  I have had the benefit of reading the reasons for decision by Carter J delivered on 20 November 2006[7] and of

   
   

   Brown J on 13 October 2003[8].  I have gleaned a history of the matter.  The father now seeks a wholesale reunification with A, E, J and K when, at the moment, there are no orders providing for the father to spend any time or communicate with the children.  The father seeks that the children be involved in his day to day life, that they stay overnight with him including at his farm, that their time together be unsupervised and be devoted to them enjoying a normal family life as well as affording the father an opportunity to educate the children about farm and economic management and answer any questions which the children may have about the last 10 years.  I don’t doubt for a minute that the father loves his children, that he is heartbroken that he cannot see them and grieves over the fact that they may not get their rightful legacy from him either emotionally or financially.  However, in my assessment, what the father seeks is not something that can be secured by orders of the court and, in the unfortunate circumstances of this case, is not attainable through legal process.  I see no reasonable likelihood of the father succeeding with his application. 

   [7] [2006] FamCA 1377

   [8] [2003] FamCA 1585

10. Before concluding I wish to record that the independent children’s lawyer made certain further submissions which, from the very preliminary standpoint

    
    

    I occupy, appeared to provide the children some opportunity to farewell the father and to enable them to appreciate in later life that there was some positive closure for their father.  That submission was included in the following passage which I have taken from the transcript[9]:-

    I am concerned that [the father] will, as he has in the past, continue to expand on what he wants rather than to reduce what he wants to an achievable aim, and that will continue to put the children in considerable distress.  If [the father] is prepared to amend his application to seeking one or two visits with the children for the purposes of saying goodbye in a suitable environment, then I would be seeking that you adjourn your consideration of him going forward until he has filed an amended application, and until the younger children have been assessed by

    
    

    Dr [P] (indistinct) from Legal Aid, and that any proceedings in regard to [L] and [R] be dismissed at this time so that they are not under the continued shadow of court proceedings.  

    [9]  Transcript of proceedings on 13 December 2007, page 21, line 21

11. The father made clear that he was not interested in anything like what the independent children’s lawyer suggested may be feasible. However, subsequently he may want to reconsider his position, not as the outcome which he most wanted but as an outcome which could be achievable.  

12. For the above reasons, I have dismissed the father’s application for leave to institute proceedings.  

I certify that the preceding thirty five (35) paragraphs are a true copy of the orders of the Honourable Justice Bennett

Associate: 

Date:  17 January 2008