Half-brother seeks communication, but 14-year-old X doesn't want it: Court case follows

Mr. Fierro wants to establish a relationship with his half-brother X, but X, who is almost 15, doesn't want one.  X's parents support X's decision and have a court order stating that Mr. Fierro can only communicate with X if X agrees or with the parents' written permission.  Mr. Fierro has filed complaints against X's parents for not allowing communication with X, but X's lawyer has stated that X's views should be respected.

Mr. Fierro is seeking to have the parents punished for not allowing communication with X contrary to his wishes.  The parents have requested that both Contempt Applications be dismissed as frivolous, vexatious, or an abuse of process, and have no reasonable likelihood of success under rule 10.09 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth).  In August 2022, the applicant submitted an Outline of Submission which stated that the principles for summary dismissal are well-established and that it is a serious matter to deprive a person of access to the courts. 

The applicant argued that even if their case appeared weak, it is entitled to the time of the court.  An Independent Children’s Lawyer had been appointed to represent X’s interests in the substantive proceedings, and the lawyer's letter was tendered as evidence.  The lawyer's letter conveyed that X was a mature 14-year-old who did not want contact with the applicant, and that her views should be given considerable weight.  The applicant's case was premised on the Court finding that X's views were not her own, or on inferring that her views were influenced by the parents' denigration of the applicant.

The applicant claims that the parents have breached Consent Orders by not facilitating communication between him and X.  However, the court finds that the Consent Orders were made in X's best interests and not primarily for the applicant's benefit, and that the orders only allow communication with X with her consent or at her initiative.  The Consent Orders prohibit communication with X without permission from the parents or X, and the parents have not given permission. 

X does not want to communicate with the applicant and has the ability to contact him if she chooses to.  The applicant's claim that the father is at fault for X not answering his call is not supported by the evidence and is consistent with X's stated position of not wanting to speak with the applicant.  Even if the applicant's evidence is taken at its highest and the criminal standard of proof is applied, there is no reasonable likelihood of success on the charge of contempt.

The court dismissed three different applications filed on different dates (February 17, February 15, and March 16) for contempt and contravention. If the first and second respondents want to determine the costs on an interim basis, they need to file an Application in a Proceeding according to the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth). If neither respondent files an Application in a Proceeding for costs, their costs for the applications will be reserved.