MOTHER SEEKS SUMMARY DISMISSAL OF PARENTING PROCEEDING INITIATED BY FATHER DUE TO CHILDREN’S STRONG OPPOSITION AGAINST SPENDING TIME WITH THEIR FATHER
Pedrad & Pedrad [2021] FCCA 80 (20 January 2021)
This is an application made by the mother to have the father’s parenting application be summarily dismissed due to the fact that the children have an adamantine opposition to any contact with the father.
Facts:
The application before the court is made by the Independent Children’s Lawyer and supported by the mother and seeks the summary dismissal of the father’s application pursuant to section 45A of the Family Law Act 1975 (“Act”).
There are two children under 18 and two children over 18. X was born 2006 and is 15, and Y was born 2010 and is 10 and a half. An older sister, Ms C Pedrad, is 25 and another older sister, Ms D Pedrad, who is 22, lives independently. The two younger children live with the mother and have spent no time with the father since January 2018.
The father’s initiating application was filed on 27 April 2018 seeking time with the children.
The family report corroborates the history alleged by the mother and all children had no interest in seeing the father. X has very strong views about the family violence history and wants no time with her father. Y stated that he was very strongly opposed to seeing his father and fearful of him. Y was resistant throughout the parenting orders program and the family contact centre and refused to leave the car.
The children’s views have been very clearly expressed. It was submitted that Y is beyond mere words, but his position could be described as primal. The older sisters have expressed real concerns about their younger brother spending time with the father. There has been no time for three years and the children’s views are unchanged. The father has failed to move the situation forward.
X, who is now 15, is adamantly opposed to spending any time with the father herself. X also reports an actual memory of assaults by the father on the mother. Y is scared of the father.
Issue: Should the court dismiss the father’s application?
Law:
Analysis:
The father has no reasonable prospects of success. The children’s views are clear and they represent irreducible facts on the ground. There has been no time for three years. In the face of the children’s age and expressed views, and the history they describe, it is immediately apparent that the father has no reasonable prospects of success in his application.
Conclusion: Father’s application is hereby dismissed.
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Is the court saying that evidence of the expert who ascertained the views of the children is unchallengeable and the foundation of those views and any conclusions cannot be tested?This appears to be an issue of procedural fairness.How does the court know that the views are genuinely held and not subject to parental influence or dictation.The court perhaps should have afforded natural justice advising the applicant that if the application is held to be without merit that costs under s117 would likely be ordered.