Watson & Morton

[2007] FamCA 497

FAMILY COURT OF AUSTRALIA

WATSON & MORTON [2007] FamCA 497

FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – CHILDREN – Father seeking leave to file an application for orders relating to children – Section 118(1)(c) Family Law Act 1975 (Cth) - Change in circumstances – Rule 11.04 Family Law Rules 2004 - Father restrained from instituting proceedings in relation to children for three years – Reasonable chance of success - Section 44 Family Law Amendment (Shared Parental Responsibility) Act 2006 - Best interests of the children – Appellant appeared in person - Appeal allowed in part.

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

Family Law Rules 2004

Re Attorney-General (Commonwealth); Ex parte Skyring (1996) 135 ALR 29
Bennett (2001) FLC 93-088
Rice v Asplund (1979) FLC 90-725
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 (at 314)
Coco v The Queen (1994) 179 CLR 427; (1994) 120 ALR 415

APPELLANT: MR WATSON

RESPONDENT: MS MORTON

FILE NUMBER: MLF 7854 of 1997

APPEAL NUMBER: SA 81 of 2006

DATE DELIVERED: 30 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Coleman, May & Thackray JJ

HEARING DATE: 29 May 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 20 November 2006

LOWER COURT MNC: [2006] FamCA 1377

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Appellant appeared in person

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Watson and Morton.

Orders

1. The appeal in relation to paragraph 2 of the orders made on 20 November 2006 be allowed and paragraph 2 of that order be discharged.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 81 of 2006
File Number: MLF 7854 of 1997

MR WATSON

Appellant

And

MS MORTON

Respondent

REASONS FOR JUDGMENT

1. In a Notice of Appeal filed on 18 December 2006 the father, Mr Watson, appeals from all orders made by Carter J on 20 November 2006.

2. The father asks that should his appeal be successful that all the orders be set aside and that he have leave to file an application and further that the Full Court make orders relating to the children, in particular that he spend time with them.

3. The orders made on 20 November 2006 by Carter J are as follows:

   (1)      That the husband's application filed 7 June 2006 be dismissed and removed from the list of cases awaiting determination.

   (2)That pursuant to r 11.04 of the Family Law Rules 2004 the husband be and hereby is restrained until 1 November 2009 from bringing any further application for parenting orders in respect of any of the children of the marriage [Miss Watson], born … 1990; [Master Watson], born … 1992; [Master Watson], born …1994 and [Miss Watson], born … 1996.

4. An earlier order was made by Brown J on 13 October 2003 as follows:

   (1)That the form 3 application filed by the husband on 28 March 2003 be dismissed.

   (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... 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)That the application of the child representative for costs be dismissed.

   (4)That reasons for judgment this day be transcribed and a copy made available to the parties.

   (5)That all extant applications be otherwise dismissed and removed from the list of cases awaiting determination.

   (6)That pursuant to Order 38 Rule 26 of the Family Law Rules this matter reasonably required the attendance of counsel.

5. The father originally appealed from this order but abandoned the appeal. Consequently the order of Brown J remains in effect.

6. As we understand the father’s appeal the grounds may be stated as follows:

   ·That the trial Judge failed to take into account the Family Law Amendment (Shared Parental Responsibility) Bill which took effect from 1 July 2006.

   ·That the order made is unfair and unreasonable to the father and not in the best interests of the children.

   ·That the restrictive nature of the order does not allow the father to apply before 2009 even if there is a change in circumstances including the children wishing to see their father.

   ·That the family report and the Court have not taken into account the impact on the children of the influence of the mother and that this may have affected the children’s stated wishes. In particular, the effect on the eldest child, who the father describes as having become a “surrogate authorative figure” [sic] and her influence on the other children.

   ·The father denies that he is vexatious as described in the decision of Brown J on 13 October 2003 in his pursuit of equal shared parental responsibility. The father’s position is that for “10 years now I have accepted any improvement in access and co-operated. In return all I been offered is litigation.”

Facts

1. There are four children, [Miss Watson], born … 1990; [Master Watson], born … 1992; [Master Watson], born … 1994 and [Miss Watson], born … 1996. The parties separated in December 1996 when the mother left the home.

2. Various orders for contact have been made, but there has been considerable difficulty.

3. The application of the father with which Carter J dealt was an Application in a Case filed on 7 June 2006 where the father asked for leave to apply for new contact orders.

4. The affidavit filed by him in support referred to an order of Benjamin J made only a month earlier on 10 May 2006 and a previous affidavit filed on 10 May 2006.

5. In essence, the father said in his affidavit that he had insufficient time with the children to contribute to their development. Recognising that orders in relation to the older children may not be productive, the father asked for contact with the younger two children. In addition the father said “the changed circumstances are occurring every day.”

6. Our appreciation of the history of the matter is somewhat limited by the absence of an appearance on behalf of the mother and the Independent Children’s Lawyer. Their appearances were not required due to the nature of the application.

7. It seems that the following are the most relevant circumstances.

8. Orders were made by Brown J on 13 October 2003 to which we have already referred.

9. On 10 May 2006 Benjamin J ordered:

   1.That upon the application of the applicant that these proceedings be heard on an undefended basis.

   2.That all existing orders providing for the children [named above] with the husband be discharged.

   3.That the question of the husband’s contact with the said children be reserved.

10. It was noted that the order of Brown J remains in place.

11. It is difficult to understand the history of contact up until that time but it seems from the father’s affidavit that there were arrangements for contact at the local Contact Centre in November 2005 and January 2006 but the children said they did not want to see the father. Mr Watson told us that he has not seen his children for two and a half years.

Submissions of the father

1. Mr Watson provided us with lengthy written submissions and we also had the benefit of his oral submissions. Understandably a large part of what Mr Watson said reflects his desire to see the children and explaining what he believes he has to offer them. There has never been any doubt in the previous judgments nor now that Mr Watson is entirely sincere in his wish to see the children.

2. Reference was made by the appellant to the amendments to Part VII or “the children’s section” of the Act as a new circumstance. Understanding that it is necessary to show a change in circumstances the appellant asks for an order providing equal parental responsibility. Section 44 of Schedule 1 Part 2 of the Family Law Amendment (Shared Parental Responsibility) Act 2006 provides that:

   The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.

   We therefore explained that this argument would not assist him. We are of the view however that what is described in these reasons as paragraph 3 of his grounds of appeal may have substance.

The Judgment of Carter J

1. The relevant parts of the judgment are as follows.

30)There is nothing in this case raised by the husband which would warrant the matter being reconsidered.  The matters relied upon, his love of the children, their love of him and the like, whilst genuinely and sincerely put before the Court and accepted by the Court, do not take the matter any further.

31)I repeat that pursuant to 11.05(4) the Court is required in mandatory terms not to grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.  In all the circumstances of this case, I am of the view that not only does the husband not have a reasonable chance of success, his application has no chance of success whatsoever.

32)I am concerned that he reapplied for contact so soon after the matter came before the Court on the last occasion.  To my mind given the circumstances in what he raised in the application which I am presently considering, his application was effectively frivolous and an abuse of process.  He has a history in the past of bringing applications very shortly after earlier applications have been dismissed.  Whilst I acknowledge that he acts for himself and may not have a full appreciation of all the nuances which apply in cases such as this, the history of the case demonstrates a high probability in my mind that the husband will continue to bring applications in respect of parenting orders for his children unless further restrained.

33)I am inclined to think it would be appropriate to make such an order restraining him in absolute terms from bringing any applications for any parenting orders with respect to any of the children for a period of three years.  Before I make that determination I want to hear from the husband about his contentions and views on his case.

…

37)The application which the husband wishes to bring does not display any change of circumstances, certainly since 10 May 2006, sufficient to warrant further investigation of the matter.  With regret I propose to make the orders foreshadowed.

1. Her Honour was correct in the finding made in paragraph 37 so that her discretion did not miscarry in relation to the orders contained in paragraph 1.

2. The provisions of paragraph 2 of the orders raises different questions. Apart from the fact that an order had already been made by Brown J we think that it is of some significance that there was no application before her Honour asking for orders relying on r 11.04 remembering that the criteria for the making of such an order are different to the provisions of s 118.

Conclusions

1. In our view, paragraph 2 of the Order extends beyond that envisaged by s 118(1)(c) of the Family Law Act and R 11.04 of the Family Law Rules 2004 as it restrains the appellant from bringing “any further application for parenting orders with respect of any of the children of the marriage…” until 1 November 2009.

2. Section 118 provides that:

   (1)The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

   (a)       dismiss the proceedings;

   (b)      make such order as to costs as the court considers just; and

   (c)if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;

   and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.

   (2)A court may discharge or vary an order made by that court under paragraph (1)(c).

3. Rule 11.04 provides:

   (1) If the court is satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:

   (a) dismiss the applicant’s application; and

   (b) order that the applicant may not, without the court’s permission, file or  continue an application.

   (2) The court may make an order under subrule (1):

   (a) on its own initiative; or

   (b) on the application of:

   (i) a party;

   (ii) for the Family Court of Australia — a Registry Manager; or

   (iii) for the Family Court of a State — the Executive Officer.

   (3) The court must not make an order under subrule (1) unless it has given the applicant a reasonable opportunity to be heard.

4. As already mentioned an Order was made by Brown J in reliance upon the power afforded to the Court in s 118(1)(c) on 13 October 2003. It seems that this Order was made at a time when the father was having contact with the children pursuant to a court order.

5. As we understand the history of the matter from a perusal of the interim judgment of Guest J on 21 October 2005, the evidence before his Honour was such that a final determination was required, his Honour directed that further evidence be filed and the matter set down for final hearing. His Honour noted the evidence of the Family Consultant, Ms Stevens and particularly her oral evidence as to the importance of the father having a relationship with the children. Mr Watson provided us with a report of Ms Stevens at the hearing of this matter.

6. Guest J ordered that should the husband fail to pay the sum of $3,000 costs to the mother, the mother would be at liberty to proceed with her application that the father have no contact with the children on an undefended basis. The father failed to pay, and this is the manner in which the matter apparently progressed before Benjamin J on 10 May 2006. The father did not appeal from the orders of Benjamin J.

7. By his further application, the subject of the decision of Carter J on 20 November 2006, the husband sought leave to pursue an application for contact with the children.

8. Her Honour noted at paragraph 15 of the judgment that she had questioned the appellant as to what he submitted constituted a change in circumstances, especially since 10 May 2006. Her Honour went on to say:

   15. Apart from re-iterating his deep and genuine love for his children, his need for them to spend time with him, the father told me that he is six months older since he last saw the children.  He also told me that he could not comply with the order for costs that Guest J had made.

9. Mr Watson told us yesterday that his health is fading. It is not apparent that this was said to Carter J.

10. Her Honour in considering the father’s application and the effect of the orders being contemplated by her, said at paragraph 25:

    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.

    … ”

11. Her Honour then referred to the Full Court decision of Rice v Asplund (1979) FLC 90-725, and said at paragraph 27:

    [T]he 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.

    Her Honour also referred to D v Y (1995) FLC 92-581 where the Full Court held, as a matter of general principle that a fresh application should not be entertained unless there exists some material change, “…something other than that which could be anticipated in children's lives…”.

12. Her Honour expressed an inclination to restrain the father in “absolute terms” from bringing any application for any parenting orders for a period of three years, and permitted the husband to make submissions in relation to this proposal.  It appears that the husband indicated to her Honour a desire, and intention to continue making applications to the Court. Her Honour acknowledged that given the requirement of leave, any future application would be made without notice to any other party, thereby averting harassment of the other party in any event. Her Honour gave significant weight to the likely implications of further applications on Court resources, at paragraph 36:

    However, as I also noted it is the case that frivolous or vexatious proceedings can also waste the Court’s resources and can divert those resources preventing the Court from attending to disputes that are properly brought before it.  I have full appreciation of the significance and importance of parties having a right to bring proceedings to the Court but I do propose to make an order as I have already outlined.  If I do not I am quite certain that within a period of days, weeks, maybe a month or so there would be a further application.

13. It is unclear as to what power her Honour relied upon in restraining any approach that the husband may wish to make to the Court.

14. There is no express power in the Act for the imposition of such a blanket restriction on an application to the Court. Section 118(1)(c) states that “if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order”.

15. I have already referred to the provisions of the Rules.

16. Her Honour referred to the decision of Kirby J in Re Attorney-General (Commonwealth); Ex parte Skyring (supra). It was also referred to  by the Full Court in Bennett (2001) FLC 93-088 where a mother had sought to restrain a father from initiating proceedings in relation to the children of the marriage without leave of the Court. In dismissing the appeal in Bennett (supra), the Full Court considered the right of a citizen to “unimpeded access to the courts” and classified this entitlement as a “fundamental common law right”, which in the event was to be modified by statute, the latter would need to be unambiguously clear and this was particularly so in the view of the existence of s 118.

17. The right of a citizen to approach the courts as a ``valuable'' right was referred to by Barwick CJ and McTiernan J in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 (at 314), where in a joint judgment their Honours held that while there was an inherent power in the High Court to restrain a person from making (without leave) unwarranted and vexatious applications in an action which is pending in the Court, there was no inherent jurisdiction to restrain a person from commencing new proceedings without leave. In the course of their judgment their Honours said:

    ``In our opinion, it is not surprising that the courts do not appear (so far as we have been able to discover) to have taken the further step of intervening in a summary way to prevent the commencement, except by leave, of actions and other proceedings by a particular person or persons but have limited themselves to exercising their powers in relation to proceedings which have been taken in a court and have thus been placed under its control. It may be that the exercise of supervision, by means of a requirement that leave should be obtained for the bringing of proceedings, could have been justified logically as a proper safeguard against abuse of the court's process in cases where it was shown to be probable that a person would continue bringing groundless proceedings. But, in our opinion, it is apparent that the courts, both in England and in this country, have declined to regard themselves as having power to do so, except where such power has been conferred upon them by an Act of Parliament or by rules promulgated under statutory authority. This is demonstrated, not merely by the absence of reported cases in which such orders have been made under the inherent power of the court, but by the fact that it has been thought necessary to deal with specific cases of the bringing of numerous unfounded proceedings by legislation rather than by invoking the inherent power of the court.''

1. We have drawn attention to this statement because in our opinion it illustrates the fundamental importance of the right of a citizen to bring an application to the courts. As Kirby J observed in Re Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321 at 323:

   “... 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.''

2. His Honour added that “[i]t is a rare thing to declare a person a vexatious litigant.''

3. It is clear that unimpeded access to the courts is a fundamental right, which can only be abrogated or curtailed by a statutory provision, the intent of which is, in the language of the High Court judgments in Coco v The Queen (1994) 179 CLR 427; (1994) 120 ALR 415, “unambiguously clear''. [Our emphasis]

4. Carter J purported to make the order in reliance upon rule 11.04 of the Family Law Rules 2004. The rule expressly refers to an order that prohibits a party from commencing proceedings “without the court’s permission”.

5. Having regard to the importance of the right to access to the Court and the need for any restriction to be curtailed only by statutory provision which is “unambiguously clear”, it would appear there is no power in the Court to restrict access to the Court in the manner paragraph 2 of the orders of Carter J purports to do.

6. For the reasons set out above, we allow the appeal against paragraph 2 of the order of Carter J and discharge that order. As I have already mentioned the husband failed to demonstrate a change in circumstances such that leave ought to have been given. The order of Brown J will thus remain in place.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  30 May 2007