Summary dismissal of Father’s application for relationship and time
Conclusion
- Even at a preliminary stage of these proceedings where the evidence is untested I am satisfied that only one conclusion can be said to be reasonable.
- I am not satisfied that there is any evidence which may be reasonably believed to enable Mr Rogers’ application to succeed at the final hearing.
- I find that an order for summary dismissal would not do an injustice to Mr Rogers.
- I find that failure to summarily dismiss the application would do an injustice to X and to the mother.
- The mother was prepared to engage in reunification counselling as recommended by the expert Dr C.
- The father’s approach to reunification counselling as described by Ms A in her report reflected the same nature and effect as his attitude expressed towards the mother in the proceedings that concluded by way of judgment on 4 April 2014.
- X has made her position clear. She is of an age where she is entitled to have her views heard and considered. X had clearly been struggling with the conflict between her parents for many years.
- At the time of judgment on 4 April 2014, the court found that X was resilient and that she valued her relationship with both of her parents but was concerned about conflict between them, to the extent that she did not like to be in the same place as both of her parents at the same time. Concern was expressed by Dr C at that time as to the impact on X of ongoing conflict between her parents.
- It is not in dispute that the father was growing drugs in his home at the end of 2014. The father was fined by the police for so doing. Such a course of action on the part of the father was potentially illegal and certainly, at the very least, flouted the intention of the terms of paragraph 6(b) of the order of 4 April 2014 if the court accepted the father’s own evidence that he used marijuana for pain relief.
- Reunification counselling was deemed by Ms A to be an unviable process for X, who simply refused to participate. Such a position on the part of Ms A was not unexpected in light of the material contained in the report of Dr C.
- The court is satisfied that no orders that it could make in relation to X spending time with her father would be complied with by X or be able to be enforced by X’s mother or the court.
- The father’s continued attempts to prosecute this matter in the face of objective information about X’s views and perceptions of the current state of her relationship with him, without any attempt to acknowledge responsibility in any part for the formation of those views, is deeply concerning.
- I find that Mr Rogers has no reasonable prospect of successfully prosecuting his application[14]. I do not find that the father’s claim is frivolous or vexatious or an abuse of the process of the court, but for the reasons given herein express concern as to any further proceedings that may be issued by the father with respect to X’s parenting arrangements.
- In the mother’s response filed 30 January 2015, which predated the filing of the application for summary dismissal, the mother sought a discharge of all previous parenting orders, an order for her to have sole parental responsibility for X, an order for X to live with her and to spend time with the father in accordance with her wishes.
- In circumstances where the court intends to summarily dismiss the father’s application for X to be delivered up to him either voluntarily or by way of a recovery order, the effect of that order will be that X will not be required to spend any time with her father other than as requested by and instigated by her or through her mother or grandparents.
- It is clear that the parties have no ability to communicate effectively whatsoever, with such situation having been the case for a significant period of X’s life.
- In circumstances where X’s time with her father will now be at her discretion, and where she is adamant that she will not have contact with her father at this time, an order for the parties to share equal parental responsibility for X is untenable.
- In those circumstances, I find that it is in X’s best interests that the orders made herein on 4 April 2014 be discharged.
- I find that it is in X’s interests for the mother to have sole parental responsibility for X, for X to live with her mother and spend time with her father in accordance with her wishes.
- I am satisfied that X has the capacity to communicate with her paternal family at her discretion, and I am satisfied that that provides X with an avenue to keep her father informed of those aspects of her health and education as may choose.
- I find that a continuation of any orders that provide for communication between the parties would result in X continuing to be exposed to conflict between her parents, a situation which cannot be in her best interest.
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