BABIC and TACCINI

[2024] FCWA 203

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: BABIC and TACCINI [2024] FCWA 203

CORAM: O'BRIEN J

HEARD: [REDACTED] SEPTEMBER 2024

DELIVERED : 13 SEPTEMBER 2024

FILE NO/S: 2418 of 2015

BETWEEN: MS BABIC

Applicant

AND

MR TACCINI

Respondent

Catchwords:

PARENTING - Where following a trial final orders were made in December 2023 whereby the husband has sole parental responsibility, and the children live with him and spend limited supervised time with the wife - Where the wife commenced fresh proceedings in June 2024 seeking to reverse those arrangements such that she would have sole parental responsibility, and the children would live with her and spend alternate weekends with the husband - Where there is no relevant change in circumstances since the primary orders were made - Consideration of the application of s 65DAAA of the Family Law Act 1975 (Cth) ("the Act") and whether relevant principles have changed since the legislative amendment which enacted it - Where the relevant principles are unchanged

HARMFUL PROCEEDINGS ORDERS - Where the husband seeks a harmful proceedings order pursuant to s 102QAC - Discussion of relevant principles - Where there are clearly reasonable grounds to believe that the children would suffer harm if the wife institutes further proceedings - Order made

COSTS - Where there are circumstances justifying an order for costs - Turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Family Law Amendment Bill 2023 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	No Appearance
Respondent	:	Mr J Hedges SC

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Bloxham Legal

Case(s) referred to in decision(s):

[2023] FCWA 291
Anison & Anison (2019) FLC 93-908
Banks & Banks (2015) FLC 93-637
Cape & Cape (2013) FLC 93-549
Dauntry & Wemple (2018) FLC 93-876
Defrey & Radnor [2021] FamCAFC 67
George v Rockett (1990) 170 CLR 104
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Lenova & Lenova (Costs) [2011] FamCAFC 141
Miller & Harrington (2008) FLC 93-383
Parke & The Estate of the Late A Parke (2016) FLC 93-748
Poisat & Poisat [2014] FamCAFC 128
Prior v Mole (2017) 261 CLR 265
R v Tillett; Ex parte Newton (1969) 14 FLR 101
Rasheem & Rasheem [2024] FedCFamC1F 595
Rice and Asplund (1979) FLC 90-725
SCVG v KLD (2014) 51 Fam LR 340
Searson & Searson (2017) FLC 93-788
SPS and PLS (2008) FLC 93-363
Vella v Commissioner of Police (NSW) (2019) 269 CLR 219
Whitehill & Talaska [2024] FedCFamC2F 768

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Babic and Taccini has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1[Ms Babic] ("the wife") and [Mr Taccini] ("the husband") are the parents of two children, [Lucy] born on [redacted] and [Ellen] born on [redacted]. There is a long history of litigation between the parties. The most recent litigation concluded in a five-day trial, following which Tyson J made final orders for the husband to have sole parental responsibility, and for the children to live with him, and spend supervised time only with the wife. Her Honour published a judgment, to which reference is made later in these reasons ("the 2023 judgment").[1]

[1] [2023] FCWA 291.

2In [early] June 2024, the wife commenced the present proceedings. She seeks sole parental responsibility, and that the children live with her and spend alternate weekends with the husband. She seeks other ancillary orders similar to those made in earlier proceedings, orders in relation to her passport, and a "reassessment" of child support. She seeks further orders that the children "attend catholic education", with the husband meeting 50 percent of associated costs, and that their surname be changed from "Taccini" to "Babic‑Taccini".

3In his response filed [later in] June 2024, the husband sought the dismissal of the wife's application, a declaration that there has been no significant change of circumstances since the making of orders by Tyson J in December 2023, a harmful proceedings order and costs.[2]

[2] Note that the husband referred to s 60DAAA of the Act in his Form 1A, but filed correspondence [in] July 2024 in which he stated that the correct section is s 65DAAA.

4I made orders in chambers on 24 June 2024 listing the husband's response for hearing and determination [in] September 2024. Those orders required each party to file documents for that hearing within a specified timeframe. The husband filed affidavit material; the wife did not. By reference to correspondence between the wife and the Principal Registrar and noting that the wife accessed the relevant orders on the court portal on 25 June 2024, I am satisfied that the wife was aware of the listed hearing, and of the requirement that she file documents. I am satisfied also that the affidavits relied upon by the husband were served on her in a timely manner.[3]

[3] See Exhibit 1.

5The wife did not attend the hearing, which was delayed for 20 minutes in case she had been unavoidably detained. Unsuccessful efforts were made to contact her by telephone[4]. I proceeded to hear submissions from counsel for the husband and reserved my decision. Orders were published permitting the wife to file an application to reopen the hearing within a specified timeframe, failing which judgment would be delivered from chambers without further notice. No such application has been filed, and no further correspondence has been received from the wife.

The evidence

[4] Noting also that the wife's telephone did not allow voicemails to be left.

6The evidence to be considered against the background of previous published judgments in earlier proceedings between the parties is:

(1)the Case Information Affidavit filed by the wife [in] June 2024 with her initiating application;

(2)the wife's affidavit verifying the information set out in the Notice of Child Abuse or Family Violence (or Risk) filed [in] June 2024;

(3)the Case Information Affidavit filed by the husband on [in] June 2024 with his response;

(4)the affidavit of the husband filed [in] August 2024;

(5)the affidavit of the husband's now wife [Ms Torres] filed [in] August 2024;

(6)the affidavit of the children's therapist [Ms A] filed [in] August 2024; and

(7)the affidavit of [Ms B], a teacher present at a graduation assembly for Lucy's [redacted] class [in] December 2023, also filed [in] August 2024.

7As counsel properly acknowledged, the husband's application for a harmful proceedings order pursuant to s 102QAC of the Family Law Act 1975 (Cth) ("the Act") necessarily falls away, at least at this interlocutory stage, if the wife's primary application is not dismissed. It is appropriate therefore to deal first with the husband's application grounded in s 65DAAA.

The husband's application grounded in s 65DAAA

Relevant legal principles

8Where, as in this case, parenting orders concluding proceedings have been made the legislation does not preclude further applications being brought. Indeed, the legislation specifically empowers the Court to discharge, vary or suspend all or part of a previous order.

9That said, it has long been recognised that continual or protracted litigation over parenting arrangements is detrimental to the children concerned, and contrary to public policy. What is generally described as the "rule in Rice and Asplund" set out the following principles:

… the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever-present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… there is some changed circumstances which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…[5]

[5] Rice and Asplund (1979) FLC 90-725, 78,905.

10As a result of recent amendments to the Act, those principles are reflected in s 65DAAA, which is in the following terms:

65DAAA. Reconsideration of final parenting orders

(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:

(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the fina parenting order to be reconsidered.

(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:

(a)the reasons for the final parenting order and the material on which it was based;

(b)whether there is any material available that was not available to the court that made the final parenting order;

(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);

(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.

(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.

11The Explanatory Memorandum to the Family Law Amendment Bill 2023 (Cth) makes it clear that s 65DAAA is intended to codify the common law principles established by Rice and Asplund and elaborated on in subsequent cases.[6]

[6] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth), [97].

12As recently noted by Altobelli J and by Judge O'Shannessy, by its terms s 65DAAA in fact departs from those principles as developed in jurisprudence post Rice and Asplund in one respect.[7]

[7] Rasheem & Rasheem [2024] FedCFamC1F 595; Whitehill & Talaska [2024] FedCFamC2F 768.

13Previously, a party applying to discharge or vary existing final parenting orders bore an onus to establish "a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child's best interests".[8] The "overarching test" to be applied by the Court was that "having regard to the best interests of the child new events or changed circumstances have to be sufficient to provoke a new inquiry".[9] The Court's consideration of any argument to dismiss the fresh application required a determination on that point.

[8] Defrey & Radnor [2021] FamCAFC 67, [22].

[9] Ibid [19].

14By its express terms s 65DAAA provides that the Court must not "reconsider the final parenting order" already in place unless it has considered whether there has been a significant change of circumstances since the final parenting order was made, and is satisfied that in all the circumstances (and taking into account whether there has been such a change) it is in the best interests of the child for the final parenting order to be reconsidered.

15Thus, as their Honours observed, the section does not expressly require proof of a significant change of circumstances as a preliminary threshold which must be cleared. Rather, the Court must first specifically consider the question of whether there has been a significant change of circumstances, and then take that into account in considering whether it is satisfied that in all the circumstances it is in the best interests of the child to embark on the reconsideration. The failure of the new applicant to establish that there has been a significant change of circumstances since the making of the final order is not expressed in s 65DAAA to be necessarily fatal to the new application.

16Notwithstanding that, the proper application of s 65DAAA still requires a clear focus on just what change of circumstances is said to have occurred since the making of the final orders, and the circumstances in which those orders were made. While the considerations in s 65DAAA(2) are neither mandated nor exclusive, their purpose is clear.

17In my respectful view, the departure accurately identified by their Honours is a distinction without a meaningful difference.

18Absent appellate intervention the starting presumption on the commencement of new parenting proceedings must be that the primary orders were correct[10] - that is, that they were in the best interests of the children at the time they were made. That presumption is capable of rebuttal by cogent evidence that a material factor was not disclosed at the primary hearing; failing that, it must follow that it cannot be in the best interests of the children to discharge or vary those orders unless there has been a relevant change in circumstances since they were made.

[10] See the discussion, albeit in the context of a stay pending appeal, in Cape & Cape (2013) FLC 93-549 at [21]-[22].

19In my view, notwithstanding that the authorities which established them predate the legislative amendment, the following principles remain intact:

1.The rule as now codified applies in every case in which final parenting orders are sought to be discharged or varied subsequently. It recognises the benefits of finality of litigation, while also recognising "that considerations acutely relevant to a child's best interests can change, including, for example, by reference to the child's age and level of maturity".[11]

2.The consideration of s 65DAAA can occur at any stage of the proceedings.[12]

3.An order dismissing an application for parenting orders following the application of s 65DAAA is not itself a parenting order. In my view, neither is an order at a preliminary stage declining to dismiss the application, without more. Nevertheless, the consideration of s 65DAAA is a manifestation of the "best interests" principle.[13] The nature and extent of the court's consideration of the matters set out in s 60CC will depend on the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.[14]

4.Where the consideration of s 65DAAA occurs at a preliminary stage, when the evidence is not tested, the applicant's evidence must be considered at its highest[15] but the matter is nevertheless determined on its merits, and not by reference to the principles applied to applications for summary dismissal.[16]

5.That common law position is supplemented by the express provisions of s 65DAAA(2). That provision permits consideration of the reasons for the final parenting order and the material on which it was based, whether there is any material presently available that was not available to the court which made the final parenting order, the likelihood that if the case proceeds to conclusion a new parenting order significantly affecting the operation of the existing order will be made, and any potential benefit or detriment to the child that might result from reconsidering the final order.

[11] Poisat & Poisat [2014] FamCAFC 128, [41].

[12] Miller & Harrington (2008) FLC 93-383.

[13] SPS and PLS (2008) FLC 93-363.

[14] See for example SCVG v KLD (2014) 51 Fam LR 340; Banks & Banks (2015) FLC 93-637.

[15] See Searson & Searson (2017) FLC 93-788.

[16] Dauntry & Wemple (2018) FLC 93-876.

20When those principles are understood, the form of orders proposed by the husband in his Form 1A Response was inappropriate, albeit their intent was clear both to the Court and to the wife. As his counsel confirmed at the hearing, in fact what the husband seeks is the dismissal of the wife's application based on a consideration by the Court of s 65DAAA at this preliminary stage.

xThe first question – has there been a significant change of circumstances since the final parenting order was made?

21For the reasons that follow, the answer to this question is "no".

The primary orders

22The final parenting orders ("the primary orders") were made [in] December 2023. They discharged all previous child-related orders. They provide for the husband to have sole parental responsibility, and for the children to live with him. They provide for the children to spend limited time with the wife, under professional supervision to be provided at her expense. They further provide that with effect from Lucy's 15^th birthday on [redacted], those limited time orders are discharged, and both children will spend time with the wife in accordance with their wishes.

23The primary orders also provide for the children to be at liberty to communicate electronically with the wife in accordance with their wishes. They provide further for the children to continue to attend for individual therapy with Ms A at the husband's expense, for the means by which the parties are to communicate with each other, the exchange of information and the like, and for the means by which overseas travel for the husband with the children can be arranged.

24It is unnecessary for present purposes to set out the primary orders in further detail. I confirm that I have considered them in full.

The wife's evidence – Case Information Affidavit [in] June 2024

25In this affidavit, the wife sets out various matters which she asserts to be relevant, but which by their terms predate the primary orders. Self‑evidently, those matters cannot evidence a change of circumstances since the primary orders were made. It is unnecessary to refer to them further.

26To the extent that the wife makes sweeping assertions that the children have been "coerced [by the husband and his wife] into lying about abuse, locking them up for extended periods and isolating them from [her] and the maternal family, having sexual intercourse in front of children" and have been manipulated by being forced to witness inappropriate behaviours and convinced to make false statements, she does no more than repeat in slightly different terms allegations previously made. Those allegations were considered at the trial which culminated in the final orders and were found by the trial judge to be baseless.

27The broad tenor of the wife's current accusations is consistent with those she raised prior to the making of the final orders. It is sufficient to note that the trial judge observed:

During the mother's evidence, she said, with conviction that:

(a)the father was a sociopathic, complete and utter malignant narcissist and manipulator who had kidnapped the children;

(b)she had been the victim of the father's campaign to alienate the children from her, which was designed to destabilise her life, torment her and persecute her;

(c) the father engaged in cult-like, obsessive conduct, and has behaved in a hostile, adversarial and abusive manner towards her; and

(d)the father used the children as pawns, to intentionally hurt her, and he derived joy from doing so."[17]

[17] The 2023 judgment at [21].

28The wife's Case Information Affidavit does not evidence any change in circumstances since the making of the final orders.

The wife's further evidence – her affidavit verifying the information set out in the Notice of Child Abuse or Family Violence (or Risk) filed [in] June 2024

29Again, in this document the wife sets out various matters which she asserts to be relevant, but which by their terms predate the primary orders. Again, those matters cannot evidence a change of circumstances since the primary orders were made. It is unnecessary to refer to them further.

30Otherwise, the document contains further sweeping assertions along the same lines as those set out in the Case Information Affidavit. Again, those assertions are consistent with those raised by the wife prior to the making of the final orders. It is unnecessary to repeat what is set out above; it is sufficient to note that the 2023 judgment makes it clear that the broad accusations now made by the wife were made prior to the making of the primary orders, and were rejected by Tyson J.

31The wife's affidavit verifying the Notice of Child Abuse or Family Violence (or Risk) does not evidence any change in circumstances since the making of the final orders.

32I readily conclude, therefore, that even taking the wife's evidence as its highest, that evidence does not establish any change of circumstances since the final orders were made. It follows that there has been no "significant" change in circumstances.

The second question – is it in the best interests of the children for the final parenting orders to be reconsidered?

33Again, the answer to this question is emphatically "no".

34I have reviewed and carefully considered the 2023 judgment. The reasons are comprehensive and clear. While it is unnecessary to summarise them in detail, the following findings bear repetition. Tyson J found that:

(a)the children have a meaningful relationship with the husband and feel loved, settled, safe and secure in his care;[18]

(b)the children love their mother, but their relationship with her is fractured and cannot be characterised as meaningful;[19]

(c) the wife has caused the children emotional and psychological harm, and they remain at risk of ongoing harm in her care;[20]

(d)the wife is unlikely to engage in the professional support she requires to ameliorate and address the harmful aspects of her behaviour;[21]

(e)that behaviour includes continuing to deny and reject the children's expressed views to the extent they do not accord with her own desires, exposure of the children to her negative views of the husband and his wife, and maintenance of her rigid belief that the husband, rather than her own conduct, is wholly responsible for the state of her relationship with the children;[22]

(f)there is no cogent evidence to indicate the children are or will be at any risk of harm in the father's care, nor anything to suggest manipulation, coaching or alienation by him;[23]

(g)the children are intelligent and emotionally mature, and have consistently and repeatedly expressed their desire to live with the husband and a preference to spend only supervised time with the wife;[24]

(h)the husband is capable of providing for all of the children's needs, while the wife is not;[25]

(i)an outcome leading to a change of residence, such that the children live with the wife would be "catastrophic for the children".[26]

[18] Ibid [195].

[19] Ibid [196].

[20] Ibid [196]-[197].

[21] Ibid [198].

[22] Ibid [199].

[23] Ibid [200].

[24] Ibid [201]-[202].

[25] Ibid [206]-[208].

[26] Ibid [210]. At trial counsel for the wife appropriately conceded that an order for the children to live with the wife was not supported by the evidence.

35Of course, that is the outcome now sought by the wife in her present application.

36Those findings, and the absence of any evidence as to any change of circumstances since they were made, lead to a ready conclusion that it is not in the best interests of the children for the final orders to be reconsidered even taking the evidence of the wife at its highest.

37That conclusion is only reinforced by the recent evidence of Ms A, who has been the children's therapist since she was initially appointed to that role by consent orders in June 2020. Ms A was found by Tyson J to have a trusting therapeutic relationship with both children and an affection towards them, while displaying empathy towards the wife.[27] It is sufficient for present purposes to note that her present evidence is entirely consistent with the findings made at trial; that the current arrangements provide the children with "stability and predictability", that they do not want those arrangements to change, and that they both hope for a better relationship with the wife and foresee a time where they have a more equal relationship with her subject to their own choices.[28]

[27] The 2023 judgment at [34]; Report dated [redacted] August 2024, annexed to an affidavit filed on [redacted] August 2024.

[28] Ibid.

38Relevantly in the context of the wife's present complaints that the children should be attending catholic schools, in circumstances where she agreed on the fourth day of the 2023 trial that they attend their current public schools,[29] Ms A confirms that "both girls are much happier in their new schools and have both made friends and are thriving socially and academically".[30]

[29] Ibid [160].

[30] Ms A's Report attached to her affidavit filed [in] August 2024 at 6.

39I have considered the 2023 judgment carefully, and in its entirety. The reasons are clearly sound and were based on comprehensive evidence. There is no material presently available that was not available to Tyson J, other than updating affidavit material filed on behalf of the husband which simply confirms the accuracy of the findings made.

40While the 2023 judgment pre-dated the recent amendments to s 60CC, her Honour clearly considered what arrangements would promote the safety of the children, their views, and their developmental, psychological, and emotional needs. She also considered the capacity of each parent to provide for those needs, and the benefit to the children of being able to have a relationship with both parents to the extent it is safe to do so. I have considered those matters in the context of this judgment, and there is no evidence to suggest that material evidence was not disclosed, or that there has been any change since they were made such as to make her Honour's clear findings no longer accurate.

41There is no reasonable likelihood that, if the final orders were to be reconsidered at this time, the Court would make a new parenting order that affects the operation of those orders in any significant way.

42There is no identifiable benefit to the children that might result from reconsideration of the final orders. There is clear identifiable detriment. These children have been the subject of proceedings in this Court since 2015, with little respite. They have lived with the husband since September 2021 and spent time with the wife, albeit not without difficulty, on a supervised basis since then. The evidence both at trial and more recently makes it clear that exposure to further conflict and litigation will be detrimental to them. That is a matter to be further considered in the context of the husband's application for a harmful proceedings order.

43To the limited extent that aspects of the wife's present application might be interpreted to seek orders not properly characterised as parenting orders, it is sufficient to note that where the orders sought are predicated on a change in the present parenting arrangements, there is no reasonable prospect of them being made. To the extent the wife seeks that child support be "reassessed", the relevant statutory considerations are not addressed. Those aspects of the wife's present application which seek orders not properly characterised as parenting orders, have no reasonable prospect of success.

44The Form 1 Application of the wife filed [in] June 2024 will be dismissed.

Harmful proceedings order

45The husband seeks an order prohibiting the wife from instituting further proceedings under the Act against him without being granted leave to do so under s 102QAC. At the hearing [in] September 2024, through counsel he confirmed his wish that if such an order is made, the Court not notify him of any application for leave, nor if any such application is dismissed.[31]

[31] Sections 102QAC(7) and 102QAC(8).

46As earlier noted, the wife has been given the required opportunity to be heard in relation to that application.[32] She has not availed herself of that opportunity.

[32] Section 102QAC(5).

47For the reasons that follow, I am satisfied that the order sought should be made.

Relevant legal principles

48Section 102QAC is in the following terms:

102QAC. Making harmful proceedings orders

(1)A court exercising jurisdiction proceedings under this Act may make an order (a harmful proceedings order ) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:

(a)the other party would suffer harm if the first party instituted further proceedings against the other party; or

(b) in the case of child - related proceedings (within the meaning of Part VII) - the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.

Note:Proceedings includes cross-proceedings and incidental proceedings (see subsection 4(1)).

(2)For the purposes of subsection (1), harm may include, but is not limited to, the following:

(a)psychological harm or oppression;

(b)major mental distress;

(c)a detrimental effect on the other party's capacity to care for a child;

(d)financial harm.

(3)In determining whether to make an order under subsection (1), the court may have regard to:

(a)the history of the proceedings under this Act between the first party and the other party; and

(b)whether the first party has frequently instituted or conducted proceedings against the other in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and

(c)the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).

(4)The court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings.

(5)The court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(6)An order made under subsection (1) is a final order.

Order about notifying other party in relation to application for leave etc.

(7)If the court makes an order under subsection (1), the court must also make an order as to whether the court is to notify the other party, in the event that the first party makes an application under section 102QAE for leave to institute proceedings against the other party, of either or both of the following:

(a)that the application has been made;

(b)if the application is dismissed - that the application has been dismissed.

(8)The court must have regard to the wishes of the other party in making an order under subsection (7).

49Notably, where a harmful proceedings order is sought, the Court is required to consider the impact of potential further proceedings on the respondent to them, and on any child the subject of those proceedings. That is distinguished from the traditional concept of vexatious proceedings orders, now reflected in s 102QB, where the focus of consideration is on the actions and motivation of the litigant who commences the further proceedings.

50The making of a harmful proceedings order does not shut the door of the Court; the person the subject of such an order may still seek to commence further proceedings but will require leave to do so.[33] The protection afforded by a harmful proceedings order is extended in those circumstances, as an applicant for leave must not serve that application unless and until leave is granted.[34] On applying for leave, the applicant bears the onus to satisfy the Court that the proposed proceedings are not frivolous, vexatious or an abuse of process, and that they have reasonable prospects of success.[35]

The first question – are there are reasonable grounds to believe that the husband or the children would suffer harm if the wife institutes further proceedings?

[33] Sections 102QAC(1) and 102QAG.

[34] Section 102QAE(4).

[35] Section 102QAG(1).

51Two points are usefully made about this fundamental question.

52First, proof that the husband or children would suffer harm if further proceedings were instituted is not required. What is required is the establishment of reasonable grounds to believe that they would suffer harm - the distinction is important. There must be facts sufficient to induce that belief in the mind of a reasonable person.[36] "The objective circumstances necessary to found reasonable grounds to believe must point sufficiently to the subject matter of that belief, [but] they need not be established on the balance of probabilities."[37]

[36] Vella v Commissioner of Police (NSW) (2019) 269 CLR 219, [44] (Bell, Keane, Nettle and Edelman JJ) citing George v Rockett (1990) 170 CLR 104, 112. See also R v Tillett; Ex parte Newton (1969) 14 FLR 101, 106.

[37] Prior v Mole (2017) 261 CLR 265, [73].

53Second, the provisions of s 102QAC(2) as to the nature of harm bear careful attention. By definition, harm may include psychological harm or oppression,[38] major mental distress, a detrimental effect on the husband's capacity to care for the children, or financial harm. Those types of harm are listed in the legislation as examples only - the list is inclusive, not exclusive. Other types of harm may clearly be considered.

[38] Proceedings may be oppressive where their effect is "seriously and unfairly burdensome, prejudicial or damaging": See GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, [119].

54In determining whether to make a harmful proceedings order, the Court may have regard to the matters set out in s 102QAC(3). I refer to those matters below only as relevant.

The history of proceedings

55The parties separated in [redacted]. Proceedings were first commenced in this Court by the husband's application filed in [mid] 2015. Those proceedings continued to what was to be a five-day trial before Moncrieff J, which commenced in [early] 2017. There were multiple interim and interlocutory applications and hearings along the way.

56The parties reached agreement in relation to parenting orders on the first day of trial, and orders were made by consent in [early] 2017.

57Financial matters were not able to be agreed, and the trial continued in relation to them. Judgment was delivered in [early] September 2017. In [early] 2018, the wife filed an application for leave to appeal out of time against the financial orders. Leave was granted, but the wife did not comply with relevant orders and the appeal was deemed abandoned.[39] It became necessary for the husband to bring an application for enforcement of the financial orders.

[39] Husband's affidavit filed [in] August 2024 at [24]-[25].

58In [mid] 2018, Moncrieff J made an order for costs in favour of the husband. Costs were awarded for the substantive financial proceedings from [late] 2016 to the conclusion of trial, the enforcement proceedings, and the costs argument itself. His Honour did not fix the amount of costs payable, and an assessment was required. That assessment was subsequently conducted by a Registrar. The quantum payable by the wife was fixed at $70,985.66. In [early] 2021 the husband filed an enforcement warrant for the seizure and sale of property to in an attempt to enforce the costs assessment.

59In June 2018, in circumstances where consent orders had been made permitting the husband to travel with the children,[40] it was necessary for him to bring a further application to facilitate that and the issue of passports.

[40] In [late] February 2017.

60In September 2018, the husband filed a contravention application alleging that the wife contravened the then current parenting orders, and an application in a case. There were at least a further eight court events, including steps to progress the matter towards trial. The husband brought a further application [in mid] 2019. In that application he alleged that the children were at risk from the wife and sought that they spend supervised time only with her.

61In [early] September 2019, the wife was ordered[41] to enrol in an anger management program, and it was deemed necessary to grant an injunction[42] restraining both parties from recording the children "for the purposes of evidence gathering for these proceedings". Over 20 further court events ensued.

[41] By consent.

[42] Without admission.

62In [late] April 2020 the husband applied for an urgent recovery order. [Later in] April 2020 orders were made for the children to be returned to him.

63In [late] May 2020 the husband filed a further contravention application. In [late] June 2020, the wife admitted multiple contraventions alleged, and was ordered to enter into a bond.

64In [mid] September 2020, the husband filed a further contravention application. In [mid] February 2023 a Magistrate found the wife to have contravened orders without reasonable excuse, and she was required to enter into a further bond and to pay the husband's costs.

65In the meantime, in [early] September 2021, the husband commenced further proceedings alleging that the children were at risk and seeking that they spend supervised time only with the wife. Those proceedings were expedited to trial and culminated in the final orders made by Tyson J in [mid] December 2023.

66As can be seen from that brief summary, proceedings in this Court commenced when Lucy was nearing her third birthday, and Ellen was not yet two. They have continued relatively unabated since. Lucy is now 12, and Ellen is 11.

67The required consideration of the history of the proceedings is not limited to the mere recital of a chronology.

68Some proceedings in this Court proceed smoothly and efficiently, with minimal acrimony, and in circumstances where the parties comply not only with substantive orders, but also with interlocutory and procedural orders designed to assist in a prompt resolution of their disputes. Other proceedings do not.

69Many litigants in this Court approach parenting proceedings in a manner consistent with the principles set out in the legislation. Many also accept determinations made by the Court, even where they opposed them, and move on with their lives. Others do not.

70In this case, the wife's conduct has led to the outcomes of contravention proceedings already described, enforcement proceedings in the financial case, substantial costs orders, and further proceedings required to enforce those costs orders. It may fairly be anticipated that any further litigation driven by the wife would be conducted in a similar vein. The documents filed in support of her present application make that clear. They also confirm that she maintains the beliefs expressed at the last trial and summarised in the words of Tyson J quoted earlier in these reasons. If anything, escalation of those beliefs and conduct is more likely than not. There is no identifiable prospect of the wife accepting determinations of the Court with which she does not agree, nor is there any identifiable prospect of her conducting any further proceedings in a manner different from what has gone before.

The cumulative effect, or potential cumulative effect, of any harm resulting from the proceedings.

71There is a logical and factual overlap between this consideration in the context of the application for a harmful proceedings order, and the consideration required in relation to the dismissal grounded in s 65DAAA of the wife's application. The latter seeks, among other considerations, to protect the children from the potential harm of ongoing exposure to litigation. The former focuses singularly on protection from such harm, whether that be to the respondent or to the children, or both.

72There can be no doubt that Lucy and Ellen have already suffered psychological harm and major mental distress as a result of the proceedings previously before the Court.

73The Single Expert Witness in the previous proceedings, [Mr C], reported in [late] 2016 that the children were "absolutely delightful" and "attractive, energetic, intelligent, vibrant, children" who were "very busy, on the go, actively exploring things, copying each other and full of energy and life". No concerns were raised about their development, albeit he observed some issues surrounding their emotional regulation - a characteristic they shared with the wife.[43]

[43] The 2023 judgment at [44].

74By the time he reported in August 2019, Mr C observed that the children had been subjected to inappropriate physical discipline by the wife, who had instructed them "not to talk about it to [him]". He took the view that the husband was priming the children in relation to allegations which they made at school, and that his discussions were "creating significant psychological pressure" on them. He regarded the wife's behaviour as a "much greater concern" as she was "recording the children while trying to get evidence".[44]

[44] Ibid [60]-[63].

75In August 2022, Ms A described both girls as "reporting to be sick with anxiety" about spending time with the wife, and "fearful of recriminations". The wife was unable or unwilling to shield the children from her negative views of the husband and his wife, or for that matter to refrain from interrogating the children - even going to the extent of asking the children in the presence of Ms A "what did you think would happen when you told people these things about me? I feel sad".[45]

[45] Ibid [106]-[108].

76The primary judgment includes detailed descriptions of difficulties encountered by the children during time with the wife, which was supervised by virtue of orders with which she vehemently disagreed. At times the children were distressed or in tears. At others they found it necessary to use a prearranged "safety signal" to the supervisor to extract them from difficult situations. Again, the children were interrogated by the wife in relation to matters relevant to the litigation then on foot.

77In her evidence at trial, Ms A described the children as fatigued and exhausted. In her view they were at risk of developing chronic anxiety and other mental health conditions if they continued to have negative and psychologically damaging experiences with the wife.

78Clearly, as found at trial, the children have already suffered psychological and emotional harm as a result of the actions of the wife. While there is a proper distinction to be drawn between harm caused by those actions, and the present required consideration of risk of harm arising from proceedings, there is an obvious factual overlap.

79The wife's behaviours towards the children which have caused them harm in the past were often directly related to the conduct of the litigation then on foot. There are clearly reasonable grounds to believe that such a pattern would resume in any future litigation, and thus that the children would suffer harm as a result.

80Given the children's ages, their views would be important in the determination of any future litigation and would thus be sought and scrutinised. They would almost certainly have to engage again with either or both an Independent Children's Lawyer and a Single Expert Witness. The problematic conduct of the wife would almost certainly escalate that process.

81The most recent report of Ms A is instructive in that regard. She said that she exercised caution in "sharing all of the issues [the children] have expressed in counselling", noting their need for privacy and confidentiality, and that "their lives have been heavily scrutinised over the past few years, and they also wish to have more control over who they share their experiences with".

82Ms A said this:

[The children's] current mental health is of serious importance due to the risks faced by young people with poor mental health. Their mental health is largely stable, however both of them experienced varying levels of anxiety. If their life situation is not managed well in terms of stability, that could change, and I would expect a worsening of anxiety symptoms. It is important to note that anxiety is often a precursor to more serious and debilitating conditions such as [Obsessive-Compulsive Disorder], depression, and substance use in adolescents.

83I readily conclude that there are reasonable grounds to believe that both children would suffer harm in the form of psychological harm or oppression, and major mental distress, if the wife institutes further proceedings against the husband. I accordingly propose to make a harmful proceedings order.

84The husband did not adduce current evidence directed to the question of whether he would suffer psychological harm or oppression, major mental distress, or a detrimental effect on his capacity to care for the children if further proceedings are instituted. While the findings at trial, and for that matter in earlier proceedings, support a conclusion that the stress associated with those earlier proceedings impacted the husband, no prospective finding as to the possible effect on him of further proceedings being commenced is required, given the conclusion already reached.

85Similarly, while there are reasonable grounds to believe that the husband would incur legal costs in opposing any further proceedings instituted, it is unnecessary to consider whether that would amount to "financial harm".

Costs

86The husband seeks his costs of the current proceedings. He understandably does not wish to incur the delay and expense associated with an assessment of costs, and proposes a fixed sum of $12,000.[46] His actual costs up to the hearing were $9,659, with estimated further costs to the conclusion of the hearing of $5,445.[47]

[46] Transcript of Proceedings from [early] September 2024 at 8.

[47] See Exhibit 2, husband's Cost Notification Letter, handed up in court on [redacted] September 2024.

87The provisions of s 117 of the Act are familiar to both parties and need not be recited.

88Neither party is in receipt of legal aid. I have no up-to-date evidence in relation to their financial circumstances but note that the husband describes himself as a [manager] who works 38 hours per week, and the wife describes her occupation as "self‑represented litigant FCWA - self - home duties". While I am prepared to assume for present purposes that the wife is of limited means,[48] impecuniosity is not of itself a barrier to a costs order.[49]

[48] Albeit noting that in her Financial Statement filed in the earlier proceedings in [redacted] 2023 she deposed to owning a unit in [Suburb A] with a value of $850,000.

[49] Lenova & Lenova (Costs) [2011] FamCAFC 141, [12].

89The conduct by the husband of the present proceedings has been entirely appropriate. As earlier noted, the wife did not comply with orders requiring her to file affidavit material and did not participate in the hearing before me which was self-evidently necessitated by her commencement of the proceedings. Those failures were against the background of correspondence to the Court stressing the urgency with which she sought to pursue substantive and interim relief.

90The proceedings were not necessitated by the failure of either party to comply with previous orders, and I was not informed of any written offers to settle.

91The wife was wholly unsuccessful in the relevant sense.[50]

[50] Anison & Anison (2019) FLC 93-908, 79-112 [36]-[37].

92I am satisfied that an order for costs is justified.

93Noting the permitted broad approach,[51] and that the power to order costs in a fixed sum need not be exercised in any "scientific or formulaic manner",[52] I conclude that an order that the wife pay the husband's costs fixed in the sum of $10,000 is just.

Orders

[51] Parke & The Estate of the Late AParke (2016) FLC 93-748, 81,944 [130].

[52] Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, [10].

94There will be the following orders:

1.The Form 1 Initiating Application of the Applicant wife, MS BABIC, filed on [redacted] June 2024 is dismissed.

2.The Applicant wife is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) against the Respondent husband, MR TACCINI, without the leave of the Court under section 102QAC.

3.In the event that the wife makes an application under section 102QAE for leave to institute proceedings against the husband, the Court is not to notify the husband either that the application has been made, or if it is dismissed, of that dismissal.

4.The wife must pay the husband's costs fixed in the sum of $10,000.

5.The Form 1A Response of the husband filed on [redacted] June 2024 is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

13 SEPTEMBER 2024