Wilson and Mason (No. 2)

[2009] FamCA 210

FAMILY COURT OF AUSTRALIA

WILSON & MASON (NO. 2) [2009] FamCA 210

FAMILY LAW – CHILDREN - Best interests
FAMILY LAW – PRACTICE AND PROCEDURE – Hearing
FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Reopen – Not granted
FAMILY LAW – CHILDREN – Child related proceedings

Family Law Act 1975 (Cth)

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

APPLICANT: Mr Wilson

RESPONDENT: Ms Mason

FILE NUMBER: MLC 6729 of 2007

DATE DELIVERED: 16 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 16 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant In Person

COUNSEL FOR THE RESPONDENT: Litigant In Person

COUNSEL FOR THE INDEPENDENT CHILDREN LAWYER Mr Arnold

SOLICITOR FOR THE INDEPENDENT CHILDREN LAWYER CE Family Lawyers

Orders

1. The following applications be dismissed:

   (a)the father’s Application in a Case filed on 26 February 2009; and

   (b)the mother’s Response to an Application in a Case filed 13 March 2009.

IT IS CERTIFIED

2.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 Wilson & Mason is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6729 of 2007

MR WILSON

Applicant

And

MS MASON

Respondent

REASONS FOR JUDGMENT

1. The present application, which has come before me in the Judicial Duty List, was filed by the father on 26 February 2009 and was supported by an affidavit sworn by him and filed on the same day.  There is also a response by the mother, also supported by an affidavit, together with an application for Contravention filed by the mother returnable on 27 March 2009. 

2. Before dealing with the substance of these applications, there are two preliminary points.  The first of those concerns the father.  He has appeared before me today on his own, as has the mother, the Independent Children's Lawyer being represented by counsel.  Shortly before the adjournment, which I took a few minutes ago in response to my increasing concern that the father was becoming very agitated, he told me that he regarded me as having made up my mind against him in this application and that there is no point in his staying and that he would leave.  He started to pack up his papers and was talking directly to the mother at the other end of the bar table only a matter of some feet away.  I became concerned about the security aspect of that because he was very angry and looked as though he might have lost control.  As a result, I determined to adjourn the court which I did immediately.  I resumed some five to ten minutes later and only counsel for the Independent Children's Lawyer and the mother were in court.  I had the father called outside the court and there was no response to the call.  Accordingly, it is appropriate that I proceed to give judgment in this matter because I am satisfied first that the father has full knowledge of the proceedings, and secondly, that he has had every opportunity to put before the court everything which he is going to put in support of his application, albeit greater parts of it are irrelevant to the present matter. 

3. The second and preliminary matter with which I deal is the standing of the Independent Children's Lawyer.  Final orders were made in this matter by Young J on 19 December 2008.  His Honour ordered at paragraph 7:

   That should no appeal be lodged against this order within a period of one calendar month, then the appointment of the Independent Children's Lawyer be discharged. 

4. An appeal was in fact lodged by the father against his Honour's orders within the requisite period, as a result of which the proceedings are now before the Full Court.  They are awaiting a listing and presumably appeal books will be settled in the near future.  In the meantime, contravention proceedings were brought in the Federal Magistrates Court before Riethmuller FM.  At the conclusion of those proceedings, his Honour discharged the Independent Children's Lawyer in circumstances which, with the greatest respect and no criticism, have created some confusion.  That confusion was brought to Riethmuller FM's attention as a result of which there was an appearance before his Honour on 26 February 2009.  In reference to his earlier order discharging the Independent Children's Lawyer, his Honour ordered that that paragraph be amended to read:

   The Independent Children's Lawyer be discharged save with respect to the pending appeal and any consequential orders.

5. It is arguable that the present proceeding is not an application for consequential orders arising out of the appeal.  In my view, with the appeal being extant, the proceedings are therefore extant and save for any order, the Independent Children's Lawyer has not been discharged.  To the extent that there is any ambiguity, I regard the Independent Children's Lawyer's appointment as remaining extant pending further order of the court.  However, I make it clear at this stage that in the event that at some later time I am found to be in error in that view, I would have taken one of two alternative courses.  The first of them would have been to hear counsel for the Independent Children's Lawyer amicus curiae, particularly given that both parties were in person and the heat in this matter is quite extreme.  The second and more preferable course would be to re-appoint the Independent Children's Lawyer with immediate effect.  In my view, whatever the question of standing of the Independent Children's Lawyer is at this moment, either of those courses would have solved the immediate problem, and I therefore do not take the question of the Independent Children's Lawyer's standing before me any further.

6. As I have said, the present application was filed on 26 February 2009.  It seeks orders in what might be referred to as two categories.  The first of those categories concerns the mother's relationship with Mr B.  Young J found in his reasons for judgment, delivered on 19 December 2008, that the mother had established what he referred to as being a solid relationship with Mr B.  The orders sought by the father in the present application were to the effect that Mr B be restrained from attending the children's school and from contacting any member of staff at the school.  The father also sought an undertaking from Mr B to that effect, and sought that "the mother be prohibited from any further discussion with Mr [B] about these proceedings or any decisions concerning our sons’ lives."

7. It will be evident from the transcript of the proceedings before me today that Mr B constitutes a major problem for the father with regard the best interests of his children.  However, Young J heard evidence, including cross‑examination, from Mr B in the proceedings late last year.  His Honour at paragraph 74 held:

   I particularly highlight and identify the ongoing vendetta which the father adopted towards [Mr B] and his actions in threatening and making unfounded allegations against him.  This conduct was both unjustified and inflammatory, and created increased tension and an unsavoury situation for the children.  Simply put, the father's conduct was contrary to the best interests of the children. 

8. At paragraph 76, his Honour referred to "family aggression and violence caused by the attitude or behaviour of the father."  I can well understand his Honour's finding, given the way in which the father presented himself before me today.  In that context, I also refer, without reading, to his Honour's reasons commencing at paragraph 83 and following, and in particular, paragraphs 84, 86, 88 and 92. 

9. The issue of Mr B’s appropriateness with regard to the best interests of the children and his relationship with the mother was considered by his Honour in the greatest detail, and those matters are now for consideration by the Full Court.  Any submission with regard to any error in which it is asserted that his Honour fell into may be made to the Full Court and a decision will be made on those matters in due course. 

10. However in my view, in the meantime nothing new has been established by the matters raised with regard to Mr B with one particular exception.  That relates to allegations by the father against Mr B with regard to an assault allegedly perpetrated by Mr B against the father on 2 February 2009 outside the children's primary school.  That was the subject of proceedings before the State Magistrates Court on 9 February 2009, on which date an interim intervention order was made. 

11. That matter is coming back for rehearing before that Court in the near future.  Accordingly to the extent that the present application of the father raises any issue concerning that particular matter, I refer to it in general terms with regard to the ratio in Rice v Asplund [1979] FLC 90-725 .

12. The second category of application in the father's present application concerns the mother, and seeks to restrain her from using her "assumed sole responsibility to permit any further interference by [Mr B] in these proceedings or in the decisions about" the subject children.  The application also seeks that the mother avail herself of appropriate and needed advice from a qualified child psychologist or psychiatrist forthwith and that such consultation include discussions with regard to various matters, but particularly the vexed issue which was raised during the trial before Young J of whether the father was the biological parent of the child N. 

13. The father conceded in this application that he should also be required to attend preferably the same psychologist or psychiatrist as the mother was required to attend. 

14. There are a number of problems with the father's application.  The first of those is that to the extent that the father sought orders against Mr B, the proceedings were not served on him and he has therefore not had the requisite formal notice of the proceedings, albeit that the mother has told me today that he did have notice of the proceedings and was prepared to attend as a witness.

15. However, the crucial distinction here is that Mr B should not be required to attend as a witness, rather if orders were sought against him, he should be required to attend as a party to the proceedings.  That has not been done.  That clearly could be corrected by way of amendment to the father's application and a resultant adjournment and service - a course which I would have considered taking, had there not been other more significant problems with regard to this application. 

16. The second problem with regard to the application relates to the nature of the material.  A significant proportion, if not the majority of the father's affidavit in support of his application, refers to evidence which was canvassed during the proceedings before Young J late last year, and relate to matters which were relevant to that proceeding. 

17. In my view, if the father is to succeed on this application, he must succeed on the basis not of what has previously occurred but rather, what has occurred since the making of his Honour's orders on 19 December 2008.  To the extent that the factual assertions deal with matters before that time, that is a matter for his Honour's reasons for judgment, to be agitated in the Full Court as the parties deem appropriate. 

18. The ultimate matter which is of concern in the father's application and in my view is fatal to it, is what arises out of the ratio of the Full Court in Rice v Asplund (supra).  That ratio has been developed in various appellate decisions over the years, and most recently by the Full Court in the matter of Miller v Harrington (2008) FLC 93‑383. It is not necessary to set out in any detail the ratio from that line of cases. Suffice it to say that in order to reopen parenting matters under Part VII of the Act following the making of final orders, it is necessary to show a changed circumstance such as would make it in the interests of the children that the matter be reopened.

19. A careful perusal of the father's affidavit material leads me to the conclusion that no such matter is raised.  As I have said, the bulk of that material concerns matters previously canvassed or at least known to the parties at the time of the proceedings before Young J, and those matters are now awaiting hearing before the Full Court. 

20. To the extent that any issue is raised subsequent to his Honour's decision, I note the alleged incident on 2 February 2009 to which I have referred and which has been the subject of intervention proceedings in the State Court, under the law of the State of Victoria.  In my view, those matters have been sufficiently canvassed there, and no relief is sought before this Court which is not available and which has not been availed of before the State Court in those proceedings, which are awaiting a final hearing in the near future.

21. Accordingly, I find that there is no new matter or change of circumstance put forward by the father in this application supported by the affidavit, such as would make it in the children's best interests that I should permit the reopening of his application.  On the contrary, looking at the father's case at its very best, and on the assumption that he can prove every fact and circumstance in his affidavit, there is no matter which is to be taken in the category of enabling a reopening.  Accordingly, it is appropriate that that application be dismissed and I will order accordingly.

22. There is one matter that I have not yet canvassed.  I note that, as I have already referred, there is a response to the father's application by the mother.  The essence of that response seeks a more definitive set of orders with regard to times and dates for drop-off and return of the children over holiday periods, as occurs for all other days and times. 

23. There are contravention proceedings issued on behalf of the mother returnable before this court on 27 March 2009.  In the event that the question of a greater definition of those holiday times becomes relevant, it would be within the power of the judge hearing those matters if he or she decided accordingly to vary the orders in that way. 

24. In those circumstances, I further find that the mother's application does not open up a sufficient issue such as would attract the ratio of Rice v Asplund (supra) and Miller v Harrington (supra) and accordingly that application will also be dismissed.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  25 March 2009