Bruin & Bruin (No 4)
[2024] FedCFamC2F 870
•8 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bruin & Bruin (No 4) [2024] FedCFamC2F 870
File number(s): MLC 1939 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 8 July 2024 Catchwords: FAMILY LAW – Parenting – mother’s application to reopen parenting proceedings within 3 weeks of final orders met with responsive application for harmful proceedings orders pursuant to s.102QAC – consideration of alleged financial and emotional forms of harm, history of instituting and conduct in child-related proceedings and cumulative or potential cumulative effect of resultant harm – reasonable grounds to believe that the father would suffer harm if the mother instituted further proceedings against him and that the children would suffer harm if the mother instituted further proceedings against him – harmful proceedings orders made.
FAMILY LAW – Costs – where one parent commenced these proceedings and the other parent continued them – consideration of relevant factors – respective costs applications dismissed.
Legislation: Family Law Act 1975 (Cth) ss.4(1), 95, 117, 102QAC, 102QAE, 102QAG, 102QB Cases cited: Bruin & Bruin [2024] FedCFamC2F 102
Bruin & Bruin (No 2) [2024] FedCFamC2F 176
Bruin & Bruin (No 3) [2024] FedCFamC2F 380
Division: Division 2 Family Law Number of paragraphs: 76 Date of hearing: 27 June 2024 Place: Melbourne Solicitor for the Applicant: Juno Family Law Solicitor for the Respondent: Coote Family Lawyers ORDERS
MLC 1939 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRUIN
Applicant
AND: MS BRUIN
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
8 JULY 2024
THE COURT ORDERS THAT:
1.The Applicant mother have leave to discontinue her application filed 4 March 2024.
2.The Applicant mother be prohibited from instituting parenting proceedings under the Family Law Act 1975 (Cth) (the Act) against the Respondent father without such leave of the Court as may be granted under s.102QAG of the Act.
3.In the event that the Applicant mother makes an application under s.102QAE for leave to institute proceedings that are subject to order 2 herein, the Respondent father shall not be notified by the Court that such application has been made and/or if such application has been dismissed.
4.The costs applications be dismissed with no orders as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
These proceedings concern a family that have been involved in child-related intervention and court proceedings for some 5 years. The children are now aged 13 and 11.
Their relevant history includes:
·Initially agreed parenting arrangements subject of orders made under the Family Law Act 1975 (Cth) (Act), in 2016;
·Interventions of child protective services, which have twice seen the children removed from their mother’s care on account of concerns about her capacity to care for the children, and Children’s Court orders that the children remain in their father’s care and spend only professionally supervised time with their mother, made in 2021;
·An application by the father to effectively extend the operation of the Children’s Court orders by application to this Court under the Act, heard over 3 days concluding in December 2023;
·An application by the mother, made in the course of those parenting proceedings, to reopen the case after the evidence had closed - which application was heard and dismissed in February 2024; and
·Final parenting orders made on 14 February 2024 which, on the Court’s assessment of unacceptable risk to the children in their mother’s care: kept the children in their father’s care, gave him sole parental responsibility, permitted the mother to spend supervised time only with the children and restrained her from attending their home, school and discussing health issues or obtaining prescriptions or referrals for or on behalf of them.
Less than 3 weeks after those orders were made, on 4 March 2024, the mother made a fresh application commencing these proceedings – essentially seeking to reopen the case in relation to supervised time for the second time.
Then, 3 days prior to the hearing of this second application to reopen, the mother sought to discontinue. This was met with the father’s insistence that the institution of further proceedings by the mother would cause him and the children to suffer harm and the Court should exercise its recently introduced power to make “harmful proceedings orders”. In the course of these proceedings, both parents applied for costs orders.
For the reasons that follow, the Court has determined to order that the mother be prohibited from instituting further parenting proceedings under the Act against the father except with leave of the Court.
An order of this kind is final but does not preclude the mother from instituting future parenting proceedings under the Act where there are reasonable prospects of success. Put another way, the mother of these children retains the opportunity to address the risk issues identified in the recent parenting proceedings and bring further proceedings if there is no agreement between the parents. The father and the children will be protected from harm in the event that further unmeritorious attempts are made in the meantime.
The father’s application is allowed with each parent to bear their own costs.
IN SUMMARY
[1]
ISSUES FOR DETERMINATION
[8]
Materials relied on by the parents
[9]
SHOULD A HARMFUL PROCEEDINGS ORDER BE MADE?
[12]
Statutory context
[12]
The evidence
[19]
Historical context
[20]
Initiation and conduct of the present proceedings
[33]
The alleged financial harm
[48]
The alleged emotional or psychological harm
[53]
Are there reasonable grounds to believe that the father would suffer harm if the mother instituted further parenting proceedings against him or, in turn, that the children would suffer harm?
[56]
Resolution of harmful proceedings order application
[69]
SHOULD THERE BE AN ORDER AS TO COSTS?
[71]
Resolution as to costs applications
[76]
ISSUES FOR DETERMINATION
At the time of hearing, the primary issues for determination were confined to:
(a)Whether a harmful proceedings order should be made pursuant to s.102QAC; and
(b)The question of liability for the costs associated with these proceedings.
Materials relied on by the parents
The mother relied on:
(a)initiating application filed 4 March 2024;
(b)affidavit of Ms C filed 4 March 2024;
(c)affidavit of Ms Bruin filed 30 May 2024;
(d)notice of discontinuance filed 24 June 2024;
(e)outline of case filed 26 June 2024.
The father relied on:
(a)amended response to initiating application filed 17 June 2024;
(b)affidavit of Mr Bruin filed 17 June 2024;
(c)chronology annexed to the outline of case filed 26 June 2024;
(d)outline of case filed 26 June 2024;
(e)written submissions of 26 June 2024;
(f)tender bundle documents of 26 June 2024.
Both parents were legally represented at the hearing. Oral submissions were made to the Court. There was no request to cross-examine deponents to the affidavit evidence and no oral evidence was given at hearing.
SHOULD A HARMFUL PROCEEDINGS ORDER BE MADE?
Statutory context
Part XI of the Act relates to procedure and evidence. The overarching purpose and objectives of the family law practice and procedure provisions in relation to proceedings under the Act are: the just determination of all proceedings; the efficient use of available judicial and administrative resources; the efficient disposal of the overall caseload of Courts exercising jurisdiction; disposal of all proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute: s.95 of the Act.
Newly inserted Division 1B, which commenced operation on 6 May 2024, provides for the Court to make “harmful proceedings orders” on application by a party to the proceedings or its own initiative: s.102QAC(4).
Subsections 102QAC(1), (2) and (3) proscribe the manner in which the power is to be exercised in the following terms:
(1)A court exercising jurisdiction in 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 party 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).
There being no prior judicial consideration of the provision or its meaning known to the parties, submissions were made about the Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth), the Supplementary Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) and the Addendum to the Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) (together, the Explanatory Memoranda), as an aide to the proper construction and application of the provision. By those extrinsic materials, the legislature explained the intention that the new limitation available under s.102QAC:
..is reasonable and proportionate to the legitimate aim of preventing harm to the respondent through continuous litigation.
The types of harm a court may have regard to pursuant to s.102QAC(2) are non-exhaustive. According to the Explanatory Memoranda, it is intended that the Court assess and determine what constitutes harm depending on the individual circumstances of each case including any non-specified type of harm.
Importantly, the Explanatory Memoranda clarifies that there need not be a finding of actual harm suffered in order to make a harmful proceedings order. It being the protective intent that those who may suffer from harm upon the institution of future proceedings are not required to have first experienced harm in order for a harmful proceedings order to be made.
Although a harmful proceedings order made under s.102QAC order is strictly final, a person subject of such order may still apply for leave of the Court to institute future proceedings under the Act that would otherwise be prohibited by the harmful proceedings order: s.102QAE. Such leave may be granted provided that the Court is satisfied that the proceedings are not frivolous, vexatious or an abuse of process and have reasonable prospects of success: s.102QAG(1).
The evidence
The following is a summary of the evidence relevant to the issues before the Court, which was mostly uncontentious (except where indicated). Some of the following has been derived from findings made in prior judgments involving the parents to which the Court was taken (the foundation for which may have been disputed in those prior proceedings but was not subject of appeal).
Historical context
The precise date is disputed but certainly the parents had separated by June 2016. There are 2 children of their relationship, now respectively 13 and 11 years of age.
Initially, the mother commenced proceedings under the Act as then in force (first parenting orders application).
On 14 June 2016, final parenting orders were made by another Judge of the predecessor to this Court by consent of the parents which included that the children live with their mother and spend 4 nights in each fortnight with their father (original agreed parenting orders).
In mid-2019, upon intervention of the Department of Families, Fairness and Housing (the Department) the children were removed from their mother’s care for the first time. They were returned to her care following 8 months’ supervised time and subsequently, in 2021, removed again by the Department. Since April 2021, the children have lived with their father and spent professionally supervised time only with their mother.
In mid-2021, the Children’s Court made orders following the intervention of the Department. Those orders provided that the children stay in their father’s primary care, spend only professionally supervised time with their mother and expired in mid-2022 (Children’s Court orders).
On 28 February 2022, the father instituted proceedings under the Act seeking to discharge the original agreed parenting orders and essentially extend the operation of the Children’s Court orders (second parenting orders application). The mother’s position in those proceedings was that any concerns about the children being at risk in her care were historical and had been addressed.
On 29 and 30 November and 1 December 2023, the second parenting application was heard by another Judge of this Court and judgment was reserved.
On 9 January 2024, the mother’s former solicitor filed a notice ceasing to act.
The reasons in the second parenting orders application were scheduled to be delivered on 1 February 2024. On 31 January 2024, the mother lodged an application in a proceeding by which she sought to reopen the trial (which was accepted for filing on 1 February 2024) (the mother’s first application to reopen). It is apparently uncontroversial that the mother had prepared the application, notice of risk, supporting affidavit and made submissions without the assistance of a solicitor.
That first application to reopen was heard and dismissed by another Judge of this Court, on 14 February 2024, on the basis it was “misconceived”: [2024] FedCFamC2F 102 at [5]. The concluding reasons included the following passages (at [50]-[52]):
The matters the mother raises do not justify reopening the parenting trial, particularly as she has other avenues open to her.
When considering whether or not to grant an application to reopen a trial and receive further evidence, the Court must also consider the best interests of the children. The mother’s complaints lack any detail and fall well short of being able to establish that the trial was unfair. Many of the issues the mother raises are not new. None of the matters the mother raises support the case being reopened which would lead to further court time, expense and delay without changing the result.
None of the complaints raised by the mother justify reopening the proceedings. The ICL accurately characterises the mother’s attempts as trying to fix things she thought did not help her case and pre-empt the judgment. I dismiss the mother’s application.
Also on 14 February 2024, judgment in the original proceedings was delivered and final parenting orders were made by another Judge of this Court. The following findings are pertinent (see [2024] FedCFamC2F 176 at [212]-[214]):
I am satisfied that due to the mother’s behaviour and lack of insight, the mother having unsupervised time at present would place the children at an unacceptable risk of harm. The children have experienced a lot of trauma and changes in the past few years. Twice they were removed from the mother’s case due to risk concerns that the mother failed to address. They have experienced stability living with the father since April 2021. They are clear in their views. They want to see their mother, they love and value their relationship with her but they do not feel safe with her and their trust in the mother has been negatively impacted by the mother’s actions including moving to [City K], keeping their pets for over two years despite knowing the children were distressed by this and the recent false sexual abuse allegation.
The mother has for a long time been on notice about the risk concerns and her parenting capacity as well as her drug use. Rather than addressing these, the mother has denied and dismissed them. It is telling how selective the mother has been in the history she has given various professionals in order to support her case. It shows the mother’s lack of insight and inability to accept how the children have been affected by her behaviour. There is no evidence to support any suggestion that the father has made false claims against her and does not support the mother’s relationship with the children. It is within her power to address these issues and commence further proceedings in the event she and the father cannot reach agreement.
There are no concerns about the children’s welfare in the father’s care. The children want to remain living with their father.
(sic.)
The associated orders made on 14 February 2024 (which continue in operation) (the current parenting orders) provide that the father has sole parental responsibility for the children and the mother is to spend supervised time with them for limited periods on the first Saturday and Sunday of each month and otherwise as may be agreed between the parents in writing. There is also an injunctive restraint on the mother’s attendance at the home of the father and the children, the school/s attended by the children, on discussions with the children about health matters and on attending upon any medical practitioner for prescriptions or referrals for or on behalf of the children – in each case, unless otherwise agreed.
On 14 February 2024, the Court ordered submissions be made as to costs and determined in chambers. On 26 March 2024, judgment as to costs of the original proceedings was delivered: Bruin & Bruin (No 3) [2024] FedCFamC2F 380. By those reasons, and in the context of assessing the significant fee borne by the mother in paying all costs of travel and supervision expenses with the children (some $1,523 net per week), another Judge of this Court found that the mother is in a stronger financial position (at [20], which finding was not appealed). It was ordered that the mother pay some of the father’s costs of that first application to reopen the proceedings - in the amount of $2,712.97.
Initiation and conduct of the present proceedings
On 4 March 2024, the mother made a fresh application commencing these proceedings, essentially seeking to reopen the outcome of the original proceedings as to unsupervised time with her children (the second application to reopen). It was accompanied by: 3 affidavits; a genuine steps certificate; a notice of child abuse family violence or risk; a family dispute resolution exemption; and a costs notice. At the time of filing the second application to reopen, the mother was not represented by a solicitor.
On 11 March 2024, the mother filed another costs notice.
On 21 April 2024, the mother filed another affidavit.
On 24 April 2024, the mother’s second application to reopen was met with a responsive application by the father, whereby he sought a vexatious proceedings order under s.102QB(2)(b) and his costs. His response was accompanied by: an affidavit; a notice of child abuse family violence or risk; and a genuine steps certificate.
On 26 April 2024, the mother filed a further affidavit.
On 29 April 2024, the father filed a costs notice.
On 25 May 2024, the mother filed a notice of address for service indicating that she had engaged legal representation to act on her behalf.
On 30 May 2024, the mother filed a further affidavit.
On 17 June 2024, the father filed an amended response whereby he sought orders including a harmful proceedings order under s.102QAC and a vexatious proceedings order under s.102QB(2)(b) and his costs with an accompanying affidavit.
On 21 June 2024, by correspondence between the parties, the mother foreshadowed that she would seek an order for her costs if the father pressed his responsive application.
On 24 June 2024, the mother sought to discontinue the second application to reopen by notice filed with the Court. By way of correspondence issued from chambers on that same day, the parties were notified that the Court was minded to grant leave to receive the discontinuance notwithstanding that it was filed within 14 days of the hearing and were invited to withdraw all extant applications or otherwise indicate whether they were pressed in which case they would be heard (as the Court was not otherwise minded to grant such orders on the state of the materials, on the papers and without a hearing).
On 24 June 2024, the father confirmed that he pressed his applications for harmful proceedings orders under s.102QAC and costs. He no longer sought an order under s.102QB(2)(b).
On 26 June 2024, the father filed an updated costs notice accompanied by an outline of case. In his outline of case, among other submissions made, the father contended that despite numerous costs orders from unsuccessful applications, the mother continued to issue court applications to which the father was required to respond and incur legal expenses as a result, where the costs orders made were on scale and insufficient to meet the total costs incurred by the father. By that updated costs notice, the father’s costs in the entirety of proceedings at the time were $128,000.13 with a future estimate of $7,980.00.
On 26 June 2024, the mother also filed an updated costs notice accompanied by an outline of case. By her outline of case, among other submissions made, the mother contended that it was after careful analysis and further assessment of the case that she proposed to resolve the proceedings on the basis that both parties withdraw their respective applications and there be no order as to costs. Further, that her proposal reflected her genuine effort to settle the matter within a reasonable timeframe reflecting her commitment to minimising conflict, further litigation and legal expenses. She also contended that the father has unnecessarily prolonged the litigation and his persistence in pursuing his application, despite opportunities for an amicable resolution, demonstrated his unwillingness to settle the matter constructively. By that updated costs notice, the mother’s costs in these proceedings at the time were $6,140.07.
On 27 June 2024, the father’s s.102QAC application and the parents’ respective costs applications were heard before the Court as presently constituted. Both parents were legally represented at hearing.
The alleged financial harm
The father deposed that the costs incurred in responding to the mother’s applications to date have caused significant financial strain on himself and the children.
The father’s unchallenged evidence was that his costs incurred in all of the various legal proceedings to date which (including the cost of the present proceedings to date) amounted to $123,937.90 as at 17 June 2024. His solicitors had estimated an additional $88,000 in legal costs should the second parenting orders application be reopened. He does not receive legal aid funding and, to the extent that the father has recovered costs of previous proceedings under the Act, he has not recovered all of those costs. It was submitted on behalf of the father that, although he had the benefit of judgment in the second parenting orders application, the amount he had spent on an indemnity basis was equivalent to 97 weeks of child support paid by the mother.
The father’s evidence was that he had to redraw on his mortgage to fund his legal expenses of the parenting proceedings in 2022 and 2023 and no longer has a redraw facility available. He also deposed that he does not have the financial capacity to continue incurring expenses to respond to this or further applications by the mother and would prefer to apply his income towards the children’s school activities, textbooks, medical expenses, excursions and extracurricular activities.
The mother sought to challenge the father’s evidence of his financial capacity by highlighting the absence of evidence about his earnings and financial means. The tender bundle filed by the mother included legal correspondence seeking certain disclosure and records of land searches indicating two properties in the father’s name. The mother also deposed to her knowledge of the father’s ownership of some 15 motor vehicles. The tender bundle of the father (handed up at hearing) included two land titles one being in the father’s name and the other belonging to his father (the paternal grandfather) with the same name.
For her part, the mother deposed to her priority being the children’s best interests and strengthening her relationship with them. Her evidence was that she does not wish to burden the father financially. She was not legally represented at the time of the first application to reopen the proceedings had initially pursued this second application to reopen the proceedings motivated by a genuine desire to protect the childrens’ interests and wellbeing. She had withdrawn the application to reopen for the second time (in these proceedings) after engaging legal representation.
The alleged emotional or psychological harm
The father referred the Court to the 14 February 2024 findings of another Judge of this Court in determining the second application for parenting orders, including the trauma that the children have suffered during the course of the history of proceedings and as outlined above.
The father deposed that he is not prepared for the children to be subject to ongoing litigation or therapy due to the trauma they have experienced from being in their mother’s care and navigating through the Court processes. He gave evidence of his desire that the children have the opportunity to thrive and enjoy their childhood without the shadow of litigation.
The mother’s evidence was directed at explaining the reasonableness of her conduct in her initial pursuit of these proceedings (summarised above) and was also understood to assert that she has made efforts to address the risk issues identified in the 14 February 2024 judgment. The mother had deposed that she could not identify any reasonable grounds to suggest that the father or the children would suffer harm including psychological harm, major mental distress, a detrimental effect on his capacity to care for the children or financial harm. Rather, the mother’s evidence as at 30 May 2024 (prior to seeking to discontinue these proceedings) was of her concern that the children may suffer psychological or emotional harm if the current arrangement continued in a supervised setting and absent family therapy.
Are there reasonable grounds to believe that the father would suffer harm if the mother instituted further parenting proceedings against him or, in turn, that the children would suffer harm?
Yes.
The father’s responsive application sought that the prohibition at s.102QAC be confined to the institution by the mother of parenting proceedings under the Act. The Court’s consideration proceeds on the application as made, there being no evidence related to property or other types of proceedings that may be brought under the Act.
The focus of the evidence was on past proceedings and conduct. It is not necessary to demonstrate past harm. It is sufficient that the Court be satisfied of reasonable grounds to believe the father would suffer harm if the mother were to institute further proceedings against the father or the children would suffer harm if their mother instituted further proceedings against their father. This necessarily involves somewhat of a predictive assessment. The statute expressly provides that the Court may be assisted in weighing up whether to make a harmful proceedings order by having regard to: the history of proceedings as between the parents under the Act, by definition at s.4(1) including any incidental proceedings; whether there is a frequency of institution or conduct of proceedings by the mother against the father in any Australian court or tribunal, including attempted institution of proceedings and orders made before commencement of the provision; and the cumulative or potential cumulative effect of any resultant harm.
It may be accepted that, absent any prohibition of the kind sought, each future parenting application the mother makes would otherwise require the father to respond and participate in legal proceedings regardless of the merit of the case (or lack thereof). The children may be directly involved through requisite participation in child impact reports and indirectly via the involvement of their parents.
The Court has received evidence and I accept that there are reasonable grounds to believe that the father would incur cost and sustain financial harm if required to respond to further proceedings instituted against him by the children’s mother. There would be a flow on and adverse effect for the children with implications for their extra curricular and other financial needs. The children, at 13 and 11 years of age, will continue to be subject of the recently made (current) parenting orders and reliant on their father financially for some years into the future.
Further, there are reasonable grounds to believe that there would be psychological and emotional harm suffered by the children were further proceedings to be instituted by their mother against their father. The father and the children have been involved in Court proceedings directed at protecting the children from risks of being in their mother’s care for at least 5 years. During the course of their lives to date, the children have twice experienced intervention of the Department to protect their welfare when in their mother’s care and, since then, been subject of orders made by independent judges of the Children’s Court and this Court who respectively considered it necessary to protect their welfare by providing supervised time only with their mother. When parenting proceedings were otherwise closed and concluded, the mother has twice sought to reopen them. In doing so, she has unilaterally prolonged the participation of the father and her children. In turn, she has prolonged a resolution for this family. The father has given evidence of his despair about the impact on the children’s development and in particular that they have the opportunity to thrive as children free from the burdens and stresses of ongoing family court litigation. Very recently, just 4 months ago, with the benefit of substantial evidence on the matter, another Judge of this Court made findings about the trauma the past proceedings have occasioned on the children which may properly be and are adopted here.
Having weighed the relevant factors as outlined above, and in the particular circumstances of this case, I am satisfied that there are reasonable grounds to believe that the father would suffer harm if the mother instituted parenting proceedings against him and that the children who are subject of the proceedings would suffer harm if their mother instituted parenting proceedings against their father.
In deciding whether to make such orders, the Court has had regard to the history of proceedings under this Act between the parents including the mother’s recent attempts to twice and in quick succession reopen the parenting proceedings. For completeness, it is acknowledged that the mother had disengaged her previous legal representation at the time of bringing the first application to reopen the proceedings in February 2024 and that her conduct was in the course of proceedings initiated by the father (who sought to extend the Children’s Court orders to protect the children and whose application succeeded). And that, on further advice, she decided to withdraw the second application to reopen which proceedings she had initiated. The reasonableness or otherwise of the mother’s conduct in this respect is not to the point. The provision at s.102QAC is focussed on the Court’s satisfaction of reasonable grounds to believe that harm may be occasioned on the father or the children as a result of the mother instituting (further) proceedings against the father, and the mother’s conduct in the course of and in originating those proceedings remains relevant to the Court’s consideration of whether to make harmful proceedings orders.
Appropriate regard has also been had to the potential cumulative effect of the resultant harm.
Further, whilst it is unnecessary to establish that harm has occurred in the past, the mother’s conduct in twice agitating to reopen proceedings and in her late withdrawal of one such attempt serves to demonstrate the harm that such litigation can occasion on the respondent father and the children.
It is also acknowledged that the mother of these children has demonstrated her willingness and determination to fight for unsupervised time with her children. There could be no question that the proceedings to date have not been without financial and emotional consequence for her. But that is not the test that the legislature has fixed. In my view, the orders sought by the father are a reasonable and proportionate step in prevention of harm to the father and the children were there to be a continuation of litigation instituted by their mother, which I am satisfied there are reasonable grounds to believe would occur if the mother were to institute further parenting proceedings against the father.
The harmful proceedings order is made in the knowledge that the mother will be able to pursue meritorious applications in the future with leave of the Court as afforded by s.102QAE, subject to the requirements for the grant of such leave under s.102QAG. It follows that she retains the opportunity to address the risk issues outlined in the judgment of 14 February 2024.
In making a harmful proceedings order, the Court must make an order as to notification of the father in the event that the mother seeks leave to commence proceedings pursuant to s.102QAE. Regard must be had to the father’s wishes. He does not wish to be notified if such an application is made or dismissed. In all of the circumstances, that is an appropriate wish and the Court will order accordingly.
Resolution of harmful proceedings order application
The Court’s power to make an order pursuant to s.102QAC is discretionary, to be exercised only if the Court is satisfied that there are reasonable grounds to believe that the other party would suffer harm if the first party instituted further proceedings against them, or if the child/ren subject of the proceedings would suffer harm if the first party instituted harm against the other party.
For the above reasons and in the particular circumstances of this case, I am satisfied that there are reasonable grounds to believe that the criteria at s.102QAC(1)(a) and (b) are met and will order accordingly.
SHOULD THERE BE AN ORDER AS TO COSTS?
The parents respectively sought an order that the other pay their costs of and incidental to this application, on an indemnity basis or pursuant to the scale.
The Act provides that each party to family law proceedings are to bear their own costs: s.117. However, the Court has the discretion to order costs if of the opinion that there are circumstances that justify such an order, subject to the provisions at s.117(2A), (4), (4A), (5) and (6) (as applicable). The relevant factors at s.117(2A) include the financial circumstances of each of the parties to the proceedings, whether any party is in receipt of legal aid assistance, the conduct of the parties in relation to the proceedings, whether any party has been wholly unsuccessful in the proceedings, any offer to settle the proceedings and terms of such offer and such other matter as the Court considers relevant.
The mother contended that the father had unnecessarily prolonged these proceedings which she had offered to settle and then sought to discontinue prior to the hearing. The mother’s legal representative made submissions about the mother’s alleged financial difficulties, as she is responsible for the costs of travelling from Queensland to visit the children in Melbourne once a month and the professional supervision. Further that she pays child support in the vicinity of $1,100.00 to $1,200.00 per month. The 26 March 2024 judgment included a finding that her income fluctuates between $553.49 and $1,523.00 per week.
The father contended that the circumstances of this matter again justified the making of a costs order against the mother as her second application to reopen was unsuccessful.
I am not minded to exercise the discretion in the present case. The conduct of the parties relevantly entailed the mother instituting a second application to reopen very shortly after an unsuccessful first attempt. The father was put to cost in this respect but also had an opportunity to minimise his own costs in the days leading up to the hearing. Instead, the father exercised his right to continue the proceedings in pursuit of a s.102QAC order and so the proceedings continued with further costs incurred by both parents. The second application to reopen was withdrawn which, albeit late, served to minimise costs and complexity to a degree. The father ultimately succeeded in his s.102QAC application. Neither parent is in receipt of legal aid assistance or funding. I do not find the parents’ financial circumstances compelling or persuasive in respect of whether to exercise the discretion to order costs.
Resolution as to costs applications
In all of the circumstances, having regard to all of the relevant factors outlined above, the respective costs applications will be dismissed, there shall be no orders made as to costs and each parent shall bear their own in accordance with s.117(1) of the Act.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 8 June 2024
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