Cannon & Acres
[2014] FamCA 104
•6 March 2014
FAMILY COURT OF AUSTRALIA
| CANNON & ACRES | [2014] FamCA 104 |
| FAMILY LAW – CHILDREN – with whom a child spends time and communicates – allegations of parental alienation – allegations of family violence – child expresses strong views to have no time or communication with the father - order that mother have sole parental responsibility and that father spend no time with the child and have no communication with her. FAMILY LAW – PRACTICE AND PROCEDURE - mother seeks vexatious proceedings orders pursuant to s 102Q prohibiting the father from instituting proceedings – order made prohibiting proceedings under the Family Law Act 1975 (Cth) against the mother or about the child without leave of the court. |
| Access to Justice (Federal Jurisdiction) Amendment Act 2012 Health Practitioner Regulation National Law (Tasmania) Act 2010 (Tas) |
Attorney General in and for the State of NSW v Gargan [2010] NSW SC 1192
Cook & Cook (No. 6) [2010] FamCA 810
Fuller v Toms [2013] FCA 1422
Jones v Cusack [1992] HCA 4; (1992) 109 ALR 31
MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424
Marsden & Winch [2013] FamCAFC 177
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
| APPLICANT: | Ms Cannon |
| RESPONDENT: | Mr Acres |
| INDEPENDENT CHILDREN’S LAWYER: | FitzGerald & Browne |
| FILE NUMBER: | HBC | 155 | of | 2009 |
| DATE DELIVERED: | 6 March2014 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 9, 10, 11 & 13 December 2013 and 28 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Mary-Anne Ryan |
| SOLICITOR FOR THE APPLICANT: | PWB Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr John Munro |
| SOLICITOR FOR THE RESPONDENT: | John Munro & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Tony FitzGerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | FitzGerald & Browne |
Orders
All previous parenting orders in respect of S Cannon (‘the child’), born … 2001, are discharged.
Ms Cannon (‘the mother’) shall have sole parental responsibility for the child.
The child shall live with the mother.
Other than at times and by methods of communication requested in writing in advance by the child to Mr Acres (‘the father’), the father shall spend no time with the child and shall have no communication with the child.
In the event the child does make contact with the father and subsequently the child writes, emails or sends a short message service (‘SMS’) message to a mobile telecommunication device of the father requesting he cease such contact, then the father shall cease such contact and/or communication forthwith.
Other than by way of a written and specific arrangement made in advance by the child with the father, the father is restrained from:-
(a)directly or indirectly communicating with the child;
(b)approaching within one hundred (100) metres of the child;
(c)attending the child’s school or requesting information from the child’s school;
(d)contacting and/or requesting information from any of the child’s health care professionals, included but not limited to doctors, dentist, orthodontist and the like;
(e)approaching within one hundred (100) metres from the home in which the child primarily resides and/or within one hundred (100) metres of any home in which the father knows the child is present.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these parenting orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The application in a case filed by the father on 27 February 2014 is dismissed.
By way of vexatious proceedings order:-
(a)The father is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the mother or the child without first having been granted leave to commence that proceeding pursuant to s 102QD of the Act,
(b)This vexatious proceeding order applies to and includes any application made by or on behalf of the father to restore to the Federal Circuit Court (or any Court exercising jurisdiction under the Act) the Contravention Application filed by him in the Federal Magistrates Court (now the Federal Circuit Court) on 28 March 2013, without first having been granted leave to re-commence that proceeding pursuant to s 102QD of the Act.
(c)This vexatious proceedings order does not apply to:-
i.any costs application of the father arising from these orders, filed within the time prescribed under the Family Law Rules 2004,
ii.any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by Order of the Full Court, or
iii.an application made by the father, within three (3) months of the date of this order to the Federal Circuit Court of Australia, seeking leave to enable him to provide a copy of the transcript of proceedings heard in that court from 17 to 19 April 2012. Nothing in this order shall impose any obligation upon the Federal Circuit Court of Australia to provide or pay for the cost of provision of that transcript.
(d)IT IS NOTED the particular consequences arising from a vexatious proceedings order are set out in s 102QD of the Act, which provides:-
(1)If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:
(a)that person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and
(b)another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG.
(2)If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.
(3)Without limiting subsection (2), the court may make:
(a)an order declaring proceedings are proceedings to which subsection (2) applies; and
(b)any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.
(4)The court may make an order under subsection (3) on its own initiative or on the application of any of the following:
(a)the Attorney-General of the Commonwealth or of a State or Territory;
(b)the appropriate court official;
(c)a person against whom another person has instituted or conducted vexatious proceedings;
(d)a person who has a sufficient interest in the matter.
(e)IT IS NOTED that if the father or any other person acting in concert with him wishes to apply for leave to institute a proceeding or proceedings covered by this vexatious proceedings order, the father or such other person will be obliged to comply with s 102QE of the Act which provides:-
Section 102QE(1) This section applies to a person (the applicant) who is:
(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
Section 102QE(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.
Section 102QE (3) The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
Section 102QE (4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
Pursuant to s 102QB(2)(c) the mother is directed to forward (by ordinary prepaid post and by email) a copy of these orders, the reasons upon which they are based and details for the correct name of Dr W (referred by that pseudonym in the reasons) to the Australian Health Practitioner Regulation Agency by post at … and by email to … (reference number …) within twenty one (21) days from the date of this direction.
IT IS CERTIFIED
All other extant applications for orders (except costs applications) be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).
Leave is given to the father to obtain (at his own expense) a copy of the transcript of the Family Court proceedings heard in December 2013 and to provide a copy of such transcript to Australian Health Practitioner Regulation Agency.
This Court requests and/or directs the Australian Health Practitioner Regulation Agency not to make any public disclosure of identifying information with regard to the father, mother and the child in terms of its investigation (reference number …) and consequential reports, without the leave of the Family Court.
Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Within twenty one (21) days from the date of these orders the Independent Children's Lawyer shall arrange to meet with the child and explain these orders to her.
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cannon & Acres has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 155 of 2009
| Ms Cannon |
Applicant
And
| Mr Acres |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings about S (“the child”), who is aged 12 and who has been subjected to parental discord over much of her life.
The child excels at school and sport. She was described by the Family Consultant as a tall, pretty young lady who presents with a shy smile and with considerable poise; she displays good humour and is mature for her age. The child has a close and supportive relationship with the mother. Such is her nature and presentation she was appointed School Captain in the final year of her primary school education; in circumstances where she began attending that school only some 12 months or so before that appointment. As a child she is all that her parents could reasonably hope for.
Parenting litigation has swirled around the child and enmeshed her childhood since she was aged about five. In that seven year period there have been three final hearings, one in September 2008, another in April 2012 and this one in December 2013. Consequently the child has been examined, interviewed, counselled and assessed in what has proved to be a fruitless search for a solution to the parental conflict. The litigation, surrounding counselling and alternate dispute resolution has not brought about peace. The litigation has defied the will and wit of the child’s parents and the family law system to end the conflict.
In the past the child has endeavoured to meet what she perceived as the needs of her parents by making them happy.
The child’s father has little or no insight into his obsessive and uncontained behaviour including his demands to have more time and longer communication with the child, despite her wishes. The child has been assaulted, harassed, verbally abused and stalked by the father. The father is unable or unwilling to see how his behaviour has impacted upon the mother causing her serious emotional insult with consequential impact upon the child.
The current proceedings were brought about by the father taking the mother to court asserting a raft of alleged contraventions of court orders in circumstances where that application was doomed to fail and I am satisfied that it was vexatious within the meaning set out in s 102Q of the Family Law Act 1975 (Cth) (“the Act”). The father arranged for one of his friends to personally serve that contravention application at the home of the mother. When the friend arrived on 29 April 2013 at the mother’s home, the child answered the door. The friend asked the child if she would like to live with her mummy or daddy. The comment was not the father’s fault but he started the storm in circumstances where he knew of the child’s concerns and the mother’s vulnerability – having seen and read the mother’s evidence together with expert evidence only one year before. At that time, the child saw the profound impact of that fresh proceeding on her mother. It was the straw that broke the camel’s back.
The child concluded that ‘enough was enough’ and she determined that it was time to make herself happy and to meet her own needs.
The child told her mother that she no longer wanted to see or communicate with the father.
On 1 May 2013 the child told the father that she no longer wanted to see or communicate with him.
On 8 May 2013 the child was taken to see her psychologist, Dr W. This was an endeavour to restore time and communication between the child and the father. The child told Dr W that she no longer wanted to see or communicate with the father.
The child was referred by Dr W to the Children’s Contact Service to obtain their assistance in restoring time and communication between the child and the father. The child was taken to see case workers at that Centre on 17 May 2013 and at that time she informed them that she no longer wanted to see or communicate with the father. The Children’s Contact Service declined to provide assistance on the basis of the child’s refused contact. The child asked the case workers if she could ‘go to court to tell the judge this herself’.
On 7 June 2013 the father filed an interlocutory application to restrain the mother from taking the child to see Dr W and to require that the child see a different psychologist.
On 12 June 2013 the mother filed an application in the Federal Circuit Court under the Act seeking orders to end the time and communication between the child and the father.
After these proceedings were commenced a family report was ordered. The Family Consultant (who is a qualified psychologist) was asked to consider what contact and/or communication the child should have with the father. When the Family Consultant met with the child on 7 October 2013, the child said to the Family Consultant that she no longer wanted to see or communicate with the father.
An Independent Children's Lawyer was again appointed for this set of proceedings and he saw the child. The child informed him that she no longer wanted to see or communicate with the father.
On the first day of the hearing the Independent Children's Lawyer, counsel for the mother and counsel for the father asked that the child be permitted to speak to me. Reluctantly and cautiously, I was persuaded to do so but on the basis that the child was informed that she was not required to see me or speak to me, that the meeting would be recorded and that the decision about parenting was for me. I required the Independent Children's Lawyer and the Family Consultant to be present while I spoke with the child. The parents and their legal representatives agreed not to be present.
I saw the child on 10 December 2013 in relatively informal circumstances in a courtroom. I said to her that she did not need to be at court, that the exchange was being recorded and it would be made available to her parents. I informed her that the parenting decision was mine. The child clearly wished to speak with me and told me that she no longer wanted to see or communicate with the father. A copy of the transcript of that interaction was provided to the parties and is an exhibit.[1]
[1] Exhibit ICL9.
I accept that the child’s views are hers. I am satisfied that given the age and maturity of this particular child her views ought to be given considerable weight.
Lost in his obsession, the father could not and would not accept the child’s views. He blamed the mother and he blamed Dr W (and he lodged a formal complaint about Dr W – which complaint has now been dismissed). The father asserted the views of the child expressed to the case workers at the Contact Service were a reflection of views from the mother. The father complained that the Family Consultant gave too much weight to the views of Dr W and that she did not see the father with the child (I accept that the approach by the Family Consultant was appropriate in all of the circumstances).
For the reasons set out herein, the father is incorrect both to blame others for the circumstances and to reject the views expressed by the child (she has made her views crystal clear).
THE PARTIES’ APPLICATIONS
The mother sought orders in her original application in terms of the child’s views. The particular orders were refined over the period of the proceeding and in her summary of argument filed 5 December 2013[2] the mother sought the following:-
(a)That previous parenting orders be discharged; that the child live with the mother and she (the mother) have sole and exclusive parental responsibility for the child.
(b)The child spend no time with the father or communicate with the father and that injunctions be put in place restraining the father from approaching the child, the child’s school, place of residence, restraining the father from obtaining information about the child from her school or any health care professional and from approaching the child if and when she is in hospital.
(c)The father be declared a vexatious litigant.[3]
(d)The father be restrained from contacting the maternal grandparents (it would seem to me that this is probably ultra vires the orders of this Court as the maternal grandparents are not parties to these proceedings).
(e)The father be restrained from contacting the child or the mother directly or indirectly, by telephone, SMS or any other form of communication.
(f)There be an order for costs.
[2] Exhibit M6.
[3] Initially the mother sought this order pursuant to s 118 of the Act but at the hearing submitted that it was available to be made under the provisions of s 102Q of the Act.
The father had filed a response and sought order set out in his case outline filed 4 December 2012.[4] His application was for orders that all previous parenting orders be discharged and that the parties attend whole of family counselling.
[4] Exhibit F1.
In the meantime the father sought orders that the child spend time with him as follows:-
(a)each alternate weekend from after school Friday until the commencement of school Monday;
(b)during school term or as otherwise recommended by the family therapist;
(c)Christmas time and Father’s Day;
(d)Saturday to Tuesday during the school holiday periods; and
(e)two periods of seven nights over the Christmas school holidays.
In addition, the father sought orders that there be telephone communication between himself and the child between 7.00pm and 8.00pm. Finally the father sought orders that he be able to attend school assemblies, parent teacher interviews and orders relating to changeovers. The father opposed the vexatious proceedings order sought against him.
On 27 February 2014 the father filed an application in a case seeking orders to ‘re-open the matter due to his assertion that there was new evidence about [Dr W]’ and to ‘seek and stay the decision in this matter until the investigation by Australian Health Practitioner Regulation Agency (‘AHPRA’) of [Dr W] is completed’.
The Independent Children’s Lawyer sought orders as set out in his case outline [5] that was that the child’s time with the father be suspended (until such time when the child chooses to have some time again) and that the mother makes all parenting decisions including whether the child attends further counselling. This approach reflected the primary conclusions of the Family Consultant. The Independent Children's Lawyer opposed the order sought by the mother that the father be subject to a vexatious proceedings order, this was notwithstanding that the Family Consultant had recommended that there be some prohibition on the father taking proceedings for a period of two years, unless he had leave of the Court. The Independent Children’s Lawyer submitted that, at this stage, such an order was unwarranted.
[5] Exhibit ICL3.
THE ISSUES
The issues in these proceedings were:-
(a)What orders, if any, should be made regarding the child spending time and/or communicating with the father, having regard to the factors set out in s 60CC of the Act;
(b)In determining the question of time and communication, the Court needs to make findings of fact as to the nature and veracity of the child’s views and what weight should be given to them, having regard to the age and maturity of the child;
(c)The impact of the conflict on both the child and the mother, as the child’s primary carer;
(d)Parental responsibility; and
(e)Whether in the circumstances of this proceedings a vexatious proceedings order should be made and if so the nature and extent of that order.
(f)Whether the father ought to be given leave to adduce further evidence and/or stay these proceedings pending the outcome of a complaint to AHPRA by the father against an expert witness, Dr W, and/or stay these proceedings.
BACKGROUND
Counsel for the mother and counsel for the father conceded that the chronology set out in the case outline[6] of the Independent Children’s Lawyer were agreed facts.
[6] Ibid.
The mother is aged 48 and the father aged 44. The mother has a child of a previous relationship, a son aged 19.
The child, who is the subject of these proceedings, was born in 2001 and is currently aged 12.
The father’s current partner has a daughter now aged 11.
In April 2006 a Police Family Violence Order was made against the father in relation to the mother and that order was to operate for twelve months. In November 2006 the mother alleged the father breached the family violence order. An interim Family Violence Order was made in December 2006 effective to January 2007. In August 2007 the father entered a plea of guilty to breaching a family violence order. In November 2007 a further Family Violence Order was made against the father in relation to the mother for a period of twelve months.
In December 2006 the father made an application to the Family Court seeking final orders for equal time with the child and interim orders for significant and substantial time. In the same month interim consent orders were made.
In January 2007 further consent orders were made which provided for specific times during February and March 2007 when the child would spend time with the father.
In November 2007 an Independent Children’s Lawyer was appointed in the Family Court parenting proceedings.
In December 2007 an amended response was filed by the mother and in January 2008 the parenting orders were varied.
Psychologist, Dr W was appointed as the single expert and he prepared a family report which was released in May 2008.
A family consultant, Ms T (“the Family Consultant”) prepared a memorandum in respect of the family dynamics and that document was released in August 2008.
In July 2008 the then proceedings were listed for hearing and that hearing took place in early September 2008. The mother was legally represented and the father was unrepresented. Orders were made and they were essentially that the mother has sole parental responsibility for the child and that the child lives with her. The child was to spend time with the father during school term each alternate weekend from the conclusion of school Thursday until the commencement of school on Monday. In addition the child spent substantial time with the father over school holidays. Orders were made for Christmas, Easter, and at other times.
In February 2008 the mother sought orders to release the May 2008 report of Dr W for the March 2009 family violence order hearing in the Magistrates Court at Hobart. Leave to use that report was granted in 17 March 2009. In August 2009 a three year Family Violence Order was made by a State Magistrate against the father.
In September 2010 the mother, without agreement, suspended the father’s time with the child; this was about the time of the birth of a daughter to the father and his current partner.
In October 2010 time between the father and child resumed but on a limited basis. The father commenced contravention proceedings in the Federal Magistrates Court (now the Federal Circuit Court). In that same month the father retained the child for two days without agreement.
An Independent Children’s Lawyer was again appointed and an affidavit by Dr W was filed, in which report he recommended that the time the child spent with the father be significantly reduced.
In February 2011 interim orders were made that the father have less time with the child than was provided in the 2008 final orders and that the father communicate with the child by telephone.
It was an agreed fact that the father’s previous partner, Ms J, applied for a family violence order on 22 December 2011. The father consented to that Family Violence Order in her favour for a period of twelve months.
After further interviews a family report prepared by the Family Consultant, was filed in November 2011.
In 2012 there was the second final parenting hearing. This occurred in the then Federal Magistrates Court in April 2012. Final orders were made on 19 April 2012. These were complex orders and they provided:-
1.That all existing parenting orders with regard to the child are discharged.
2.That the mother have sole parental responsibility for [the child] and keep the father informed, via the Communication Book, in a timely manner with respect to serious medical advice/issues about the child and the time and place of any surgery which the child is booked in for.
3.That the child live with the mother.
4.That [the child] spend time and communicate with the father:
a)On 26 weekend days per year routinely as follows:
i. As set out in a roster which the mother will provide the father by the first Friday of Term One each year, which will commence on the 1st day of March and extend for the next 52 weeks;
ii. That should the roster result in the father not spending time with [the child] for three weeks or greater, the mother will provide the father with time after school between 4.00 p.m. and 7.00 p.m. on a weekday in week three, with which be in addition to the 26 days provided for in this paragraph and that day shall be Wednesday if possible.
b)By telephone communication initiated by [the child] each Wednesday between the hours of 6.00 p.m. and 8.00 p.m. and any further telephone communication [the child] initiates at other times;
c)By attending up to six (6) school or extra-curricular activities or events per year, for example school cultural events, sporting carnivals, special assemblies and school concerts in which [the child] is participating, on the written invitation from the mother, and conditional on the father not approaching [the child] or the mother at such events AND the father is to arrive at the nominated functions at the time they commence, and leave the premises promptly at the conclusion of the event; [note this Order was discharged and substituted with the following Order on 4 March 2013:
“By attending at the child’s athletics, cross-country and swimming carnivals and three school assemblies each year. Such assemblies to be at the election of the father and upon 14 days written notice by the father to the mother of such election and subject to the conditions set out in the orders made 19 April 2012 and subject at all times of the consent of the child’s school.”]
d)The following additional days to those provided for in sub-paragraph 4 a) above:
(i) On Father’s Day between 10.00 a.m. and 4.00 p.m.;
(ii) On the father’s birthday, …, for not less than two hours, and if a non-school day that time will instead be between 10.00 a.m. and 4.00 p.m.;
(iii) For Christmas Day between 10.00 a.m. and 2.30 p.m.;
(iv) For Easter 2012 and each alternate year from 10.00 a.m. to 4.00 p.m. on Easter Sunday;
(v) For Easter 2013 and each alternate year between the hours of 10.00 a.m. and 4.00 p.m. on Good Friday; and
e)Such further or alternate times as agreed by the mother in writing from time to time.
5.That any proposal with respect to [the child] pursuant to sub-paragraph 4 e) above be made through the Communication Book and the party being asked to respond shall do so within 2 weeks.
6.That should [the child] have a birthday party to attend for one of her friends, the father’s time pursuant to sub-paragraph 4 a) above will change to be on the other weekend day.
7.That the parties utilise and keep a Communication Book to pass information regarding [the child] only, and each party ensure that the book is passed with [the child] at her changeovers, and ensure that the book is with [the child] at the commencement of her time with the father and returned by the father at the conclusion of his time with [the child], and the father is hereby restrained from returning the Communication Book to the maternal grandparents, or [the child’s] school.
8.That the parties keep each other informed of their residential address within seven days of any changes to it.
9.That the father is prohibited from initiating discussion with [the child] of any Court Orders, telephone communication, overnight stays with him, or an extension of his time with [the child].
10.That the mother or a person nominated by the mother will facilitate changeovers to occur at the maternal grandmother’s residence, providing the following:
a)The paternal grandmother is available or the father is present AND the father is not to approach the Mother;
b)The paternal grandmother continues to live in [Suburb E];
and should the paternal grandmother not be available for changeovers, or should the maternal grandmother no longer reside in [Suburb E], or should the father approach the mother, then changeovers will occur at the [L] Shopping Centre until agreement is reached otherwise or the provisions of a) and b) of this sub-paragraph are restored.
11.That if the paternal grandmother or the father is not present when the mother drops [the child] off at the commencement of the father’s time and that remains for fifteen (15) minutes that day’s spend time will be cancelled.
12.That the father is hereby restrained from contacting any of [the child’s] medical practitioners, paramedical professionals, dentist, orthodontist, or hospital where [the child] is receiving treatment at any time, without the mother’s written invitation to do so prior to this, and is to adhere by any conditions the mother places in that invitation.
13.That the father is only permitted to contact [the child’s] school to make his appointment to attend a parent/teacher interview with [the child’s] teacher, by himself, during the school’s standard round of parent/teacher interviews.
14.That on occasions when [the child] is hospitalised, receiving post-operative care or recovering from treatment, the provision of the father’s time provided for in paragraph 4 above will be suspended and [the child] will be living with the mother, until [the child] returns to school or is certified fit for school.
15.That while [the child] is hospitalised for surgery the following provisions for some time with her father will apply as follows:
a)For 15 minutes with [the child] on the day she is admitted for surgery at a time specified by the mother in writing;
b)On the day after surgery for 15 minutes at a time specified by the mother either through the Communication Book or by contacting the paternal grandmother with the specified time;
c)Subsequent days in hospital for an hour at times specified via the Communication Book, or by contacting the paternal grandmother to specify the time.
16.That during the father’s time with [the child] in hospital provided for in paragraph 15 above, the mother will leave [the child] and allow [the child] and the father privacy AND the father will leave the treatment facility at the conclusion of his time.
17.That during the father’s time with [the child] at the hospital pursuant to paragraph 15 above, should the hospital staff interrupt him and ask him to leave, the father will comply with that request.
18.That should the mother determine [the child] would benefit from further counselling she will contact [Dr W] to organise this with [Dr W] AND the mother will comply with any counselling regime recommended by [Dr W].
19.That the father not go within 100 metres of [the child’s] school without the written permission of the mother, except as provided for in paragraph 4 c) and paragraph 13 above.
20.That the father is hereby restrained from approaching any greater than 100 metres from the boundary of the mother’s residence.
21.That all extant parenting applications with regard to [the child] are dismissed.
THE COURT NOTES
22.That with exception of paragraphs 4 b), 12, 13, 14 and 18, these Orders are made by consent.
23.That the father intends to continue to attend counselling with [Ms M], or such other professional as Ms [M] recommends, at least once per month in relation to his relationship with [the child].
24.That it is the father’s preference to spend as many alternate Saturdays with [the child] as possible. The mother intends to allocate as many alternate Saturdays as possible to the father in the roster of the father’s 26 weekend days with [the child], pursuant to sub-paragraph 4 a) (i).
In November 2012 the father filed a contravention application alleging that the mother had not facilitated time arrangements and telephone calls in accordance with the 2012 final orders. That contravention application was dismissed by a Federal Magistrate (as he then was) on 4 March 2013. The parenting orders of 19 April 2012 were slightly varied.
In late March 2013 the father filed a new contravention application and on 7 June 2013 he filed an Application in a Case seeking orders that the mother be restrained from taking the child to see Dr W, and that she be taken to a different psychologist.
On 12 June 2013 the mother filed an Initiating Application seeking orders that the orders made in the then Federal Magistrates Court on the 19th April 2012 and the 4th March 2013 be discharged, that the child live with her, that the mother have sole parental responsibility and the father's time with the child be suspended. The mother sought various restraining orders, including that the father be restrained from approaching within 100 metres of the child's school, contacting the child's school, attending the child's school or extra-curricular activities, contacting the child's medical practitioners and similar persons, attending any hospital, approaching within 300 metres of the mother's residence, contacting the maternal grandparents and that the father be declared a vexatious litigant.
In June 2013 a further order was made for the appointment of an Independent Children's Lawyer and the proceedings were transferred to the Family Court for a third final hearing.
In September 2013 the father filed an Application seeking orders that the child attend Dr H for the purpose of family therapy and the parties attend all sessions as reasonably directed by Dr H.
In October 2013 a family report prepared by the Family Consultant was released.
This third final hearing was heard over four days in December 2013. At the conclusion of evidence and submissions on 13 December 2013 the judgment was reserved.
On 17 December 2013, some two working days after these proceedings were reserved, the father lodged a written complaint with AHPRA in terms of Dr W. In his complaint material the father asserted that he discovered for the first time that Dr W has been providing therapeutic assistance to the mother. The father made various other serious complaints about Dr W.
No other application to re-open his case in these proceedings was made by the father between 17 December 2013 and his filing of the application in a case on 27 February 2014.
By letter dated 19 February 2014 the father was informed by AHPRA that they would investigate his 17 December 2013 complaint.
In the week commencing 24 February 2014 the parties were notified by the Family Court that reasons in these proceedings would be delivered at 10 am on Friday 28 February 2014.
Subsequent to that notice to the parties and the Independent Children's Lawyer, the father filed his application in a case seeking a stay and leave to re-open and adduce new evidence. That application was filed at about 4pm on 27 February 2014. That application in a case was supported by the father’s affidavit sworn and filed at same time and date. The substance of that affidavit constituted the complaints contained in the ‘complaint form’ dated and marked received 17 December 2013 and the letter from AHPRA to the father dated 19 February 2014.[7] That application in a case was heard 28 February 2014. The father was legally represented, as was the mother and the Independent Children's Lawyer who appeared for the child.
[7] Annexed to affidavit of father sworn and filed 27 February 2014
At that time, notwithstanding the matters factual matters asserted by the father in his complaint attached to his affidavit, his counsel, Mr Munro, informed the court that he personally was not filing an affidavit in that application in a case nor was he lodging a complaint with AHPRA as otherwise deposed by the father in the complaint attached to his affidavit.
The Court invited Mr Munro to make submissions as to whether the application in a case could be used as part of the material in determining whether a vexatious proceeding order ought to be made and whether a copy of the eventual orders and reasons upon which they were based ought to be made available to AHPRA. Mr Munro made submissions that the application was not a vexatious proceeding and that the father’s complaint would be prejudiced by provision of orders and reasons to AHPRA.
In these Reasons any statement of fact is to be regarded as a finding of fact unless the contrary is indicated from the context of the statement.
WITNESSES
The mother’s evidence and case
The mother relied upon her affidavit filed 25 September 2013 together with the following Exhibits:-
§M1 – report of Dr C dated 28 November 2013 in relation to the mother (together with an affidavit setting out her qualifications and instructions);
§M2 – report of Dr C dated 28 November 2013 in relation to the father together with a further copy of her curriculum vitae and instructions;
§M3 – the relevant pages of the communications book from October 2008 through to April 2013;
§M4 – the telephone records in respect of calls between the father and the child from April 2012 to November 2012;
§M5 – a bundle of documents which included:-
Letter to mother from father dated 2/12/13;
Photograph of the child’s party dated 22/12/12;
Envelopes found by the mother containing envelopes hand delivered to the residence on 14/12/12;
Items delivered on 14/12/12 by couriers;
Record of text messages sent by the father to the child;
Copy of roster provided to the mother on 7/7/12 clarifying dates beyond September 2012;
Copy of roster provided by the mother on 22 or 29 September 2012 detailing highlighted changes to December/November 2012 to provide more regular weekends;
Mother’s records of child visits to the father from April 2012 to February 2013;
Roster provided to the father for 2013 and 2 February 2013;
Completed roster provided to the father for the entire year from 23 February 2013;
It also contained Exhibits M4 and M5; and
§M6 – The mother’s summary of argument.
The mother described her reaction to a contravention application served upon her in late April 2013. That application needs to be seen in the context of the whole of the litigation.
Final parenting orders were made in September 2008. These were made following proceedings commenced in December 2006 (when the child was aged about five).
In 2010 the mother commenced proceedings for a change of the 2008 orders as a result of what the mother believed was stress to the child.
An Independent Children’s Lawyer was appointed and interim orders were made involving the assistance of Dr W in assisting the relationship between the father and the child. Dr W commented in his 2011 report (prepared prior to the April 2012 hearing) that:-[8]
The author [[Dr W]] feels the need to express that [the child’s] issues with her father are long standing. The author does not hold great confidence in [the father’s] ability to make a consistent change to what appears to be a long-standing pattern of behaviour and style of communication. The author has advised both [the father] and his lawyer that because of the significance of the distress [the child] has been experiencing as a result of [the father’s] actions, and the chronic nature of this pattern of inappropriate behaviour by the father, if such pattern of behaviour were to reoccur, the author would most likely support an Application by the mother for a ‘no contact’ Order.
[8]Heading 8, page 17 report January 2011.
That second final hearing was heard and determined by Federal Magistrate Roberts (as he then was). He made orders that the child live with the mother, the mother have parental responsibility but keep the father informed. Orders were made that the child spends time with the father as set out in that order of 19 April 2012. These orders were made by consent after the trial had commenced.
On 13 November 2012 the father filed and subsequently served a contravention application on the mother.[9] This contravention application was badly drafted and made general claims about the mother’s failure to provide rosters, missed telephone calls, extra-curricular activities and allegations that the child arrived late.
[9] Exhibit ICL5.
That application was heard by Federal Magistrate McGuire (as he then was) in early March 2013.[10] The contravention application was dismissed and a minor variation was made to the parenting orders of April 2012.
[10] Exhibit ICL6.
The mother represented herself in those proceedings and she said (and I accept) that it took a lot of time and effort to answer the applications, including time over the Christmas 2012 and New Year 2013 school holiday period.
About three weeks later, on 28 March 2013, the father filed a further contravention application, raising many of the allegations that had been dismissed earlier that month. That new application was listed before a Federal Circuit Court Judge in early May 2013. The father did not cause it to be served until late April 2013.
The mother was very distressed when the 28 March 2013 contravention application was served upon her in late April 2013 by a friend of the father. The mother was given no warning of the litigation and the documents were served in the presence of the child. The father had little insight or no regard for either the mother or the child when he sent his friend to serve the mother. The mother’s evidence, which I accept, was that the child opened the door, and the man said to the mother ‘I don’t know you but I know your daughter’. The man asked the child if she ‘wanted to live with mummy or daddy’. The mother was devastated and broke down, perversely the father via the cross-examination of the mother (which could only have been on the father’s instructions) was critical of her for not coping with the new proceeding in the presence of the child. The mother telephoned Legal Aid to find out what she could do about the documents as she was required to sign a receipt.
The child subsequently telephoned the father and told him she did not wish to see him again.
The impact of this ongoing litigation has had a profound emotional impact on the mother as set out by her in her affidavit and by the Family Consultant in her affidavit and Dr C in her material. This followed the father’s attendance at the school’s Anzac Day March on 25 April 2013. The mother says, and I accept, that the child said to her ‘dad’s here, dad’s here’ and was quite agitated but later gave him a wave and a hug. This was in circumstances where the father was not expected at that event and where the father knew or ought to have known that the child and mother would be upset and/or agitated.
The father well knew of the emotional condition of the mother as it had been part of the material before the Court in April 2012, including the December 2011 report of Dr W.
When the orders were made in April 2012 they provided that the mother could invite the father up to six (6) school or extra-curricular activities or events per year, (for example school cultural events, sporting carnivals, special assemblies and school concerts). The mother invited the father to two such events, one of which did not occur because the child was unavailable.
The evidence of the mother was that the father endeavoured to ‘take control’ and wanted to tell her when he would be there. This taking control clearly had an impact on the mother.
It is clear from the mother’s evidence that the father regularly ‘pushed barriers’. An example of this was the photos in Exhibit F2 which were not in accordance with the agreement between the parties.
The mother was concerned about the father driving the child in a car without a driver’s licence, driving uninsured or unregistered vehicles and his bankruptcy. The mother says and believes that this was indicative of the father’s belief that he was not bound by normal rules or orders. The mother attended court on a number of occasions after seeing the father’s name in the paper to find out whether he had a driver’s licence. The mother said she was concerned about the well-being of the child.
After the mother was served with the further application she calmed down and arranged to take the child to see the psychologist, Dr W, on 8 May 2013. Dr W suggested the mother try and resume contact through the Children’s Contact Service.
The mother attended the Service with the child so the child could undertake the induction process. Such was the child’s concerns (which I accept were those of the child) that the Children’s Contact Service would not facilitate the contact.
I accept the mother’s evidence of that process and I reject the suggestion by the father that it was ‘a device’ and that the child was sent there for that purpose.
The mother was in the witness box at various times over three days. She gave evidence as to how the constant requests of the father were, in her mind, continued harassment. The mother was asked about family therapy and her refusal to engage in it after April 2013. Her evidence was that the child did not want that therapy and that the mother was concerned about the constant therapy in terms of the child and the various proceedings over many years.
The mother gave her evidence frankly and clearly, she was not shaken in cross-examination. She made concessions against her interests including her emotional response to the service of the application in late April 2013.
She came across as child focused and that the child maintained a relationship with the father, despite his ongoing and persistent abhorrent behaviour, is indicative of her endeavours not only to comply with orders but to enable the relationship between the child and the father.
I accept her evidence as reliable.
Family Consultant
The Family Consultant is employed by the Family Court of Australia. She is a clinical psychologist who has worked as a Family Consultant with the Family Court in Hobart for over 20 years, there was no challenge to her expertise.
The Family Consultant prepared two reports in relation to the child. Those reports were read into evidence.[11]
[11] Report dated 27 September 2011(Exhibit ICL 1) and Report dated 11 October 2013 (Exhibit ICL 2).
In her September 2011, prepared for the 2012 hearing, the Family Consultant recommended that:-
39.The current orders are appropriate to continue on a long term basis; that [the child] has daytime contact with [the father] each alternate weekend subject to any recommendations made by [Dr W].
40.[Dr W] continues his counselling involvement with [the child]; and that a copy of this report is released to him for his information.
41.The contact arrangements are subject to an assessment by the Independent Children’s Lawyer that there is no legal impediment or other risks to [the child] spending time with [the father] or being transported by him.
42.[The father] continues with his counselling support and psychological therapy; this appears to have had some positive impact and should be continued if changes are to be maintained. The court could consider the release of this report to his counsellors to assist with their understanding of the legal process and how it impacts on [the father].
In her October 2013 report, prepared for these proceedings, the Family Consultant recommended that:-
49.The time for [the child] with [the father] is suspended until such time when [the child] chooses to have some contact again.
50.[The mother] makes any decisions regarding the need for [the child] to have further counselling in [the mother’s] capacity as having sole parental responsibility.
51.The court makes the required determinations as to whether there have been contraventions and whether [the father] should be declared a vexatious litigant, consideration of these matters is considered beyond the scope of the family consultant.
52.Consideration is given to limiting any further proceedings for a period of at least two 2 years, without express leave of the Court.
The Family Consultant was cross-examined by the Independent Children’s Lawyer, counsel for the mother and counsel for the father. Her evidence as to the views and circumstances of the child was cogent and persuasive.
Her evidence was that the mother would, if asked by the child, facilitate communication and time between the child and the father. The mother had done so over many years despite the difficulties of the child and the father’s approach.
The Family Consultant has had the opportunity of a semi longitudinal study of the child. She also had available to her the reports from Dr W.
The Family Consultant was challenged as to why she did not see the child with the father. Her response was that bearing in mind the age and maturity of the child and the expert evidence of Dr W that seeing the child in the presence of the father was potentially damaging and stressful for the child.
In paragraph 29 of the Family Consultant’s September 2011 report she observed:-
29.[The child] said that she did not usually express her views of concerns to her father. She described how she has previously avoided discussing her concerns and she also said that ‘I don’t really like hurting his feelings’. She does not like to ask her father many questions as ‘I get worried how he might react to it’. She explained that he often answered by ‘sort of making excuses’ about things and confusing her. She spoke about [Dr W] having joint sessions with [the father] and her, so that ‘dad could understand me better’. She said, ‘that was hard, dad would get teary (and) I sort of clammed up … I don’t like to make dad upset, I start to get teary. [The child] acknowledged that [the father] was unlikely to know when she feels unhappy when she is with him as ‘I don’t think I actually tell him’.
Given that evidence and the professional approach adopted by the Family Consultant I am satisfied that the methodology adopted by her, in respect of each of the reports was, in all of the circumstances, sound.
The Family Consultant said that her assessment of the father was that he was unable to accept the child could generate her own views and had a fixed view that the problems arose with the mother. The Family Consultant said that the father was dismissive of the child’s views and:-[12]
20.[The father] does not consider that [the child] is old enough to have her views and opinions taken into consideration. He said that [the child’s] views are ‘based only on (the mother’s) opinion’. The father suggested that there be ‘family counselling’. The father’s approach in relation to family counselling would be that the family counsellor would tell the mother how to better manage her parenting.
[12] Exhibit ICL 2.
This needs to be seen in the context of Dr W, psychologist, being involved in endeavouring to find solutions for this family over a period of time which had been unsuccessful. Having considered the interviews and the evidence the Family Consultant, in her October 2013 report observed the factual history in paragraph 4:-
41.The Court has had a long involvement with this family. From the beginning of proceedings the issues have remained relatively constant; [the mother] has presented with heightened anxiety and alleged this to be the result of [the father] being inappropriate and overly persistent in his behaviour, especially in relation to his involvement with [the child]. [The mother] was granted restraint orders for her protection from 2006 until 2012. From early on there were clear indications of [the child] being affected by stress and anxiety due to the parenting arrangements and the conflicted parental interactions she has experienced throughout her life. She has been in counselling from a very young age. Another constant has been that [the father] does not accept that he has contributed to any part of the problems experienced in the family and that he has argued consistently that he has an extremely positive and loving relationship with [the child].
This paragraph contains a series of facts, which I accept. Further, I accept the assessment of the father by the Family Consultant.
The Family Consultant observed of the father, in paragraphs 42 and 43:-
42. What is not in doubt is that [the father] loves his daughter, that he enjoys her company and takes pride in her achievements, and that he would like nothing better than to have an active involvement in every aspect of her life. What is also evident is that the early parenting arrangements that were agreed between the parents in counselling, supported in the single expert report, and also supported by the Courts following the first trial – of [the father] having time with [the child] on alternate weekends – significantly diminished over time. The second trial resulted in orders for [the father] to have significantly less time with [the child]; that is, the Court concluded that it was in [the child’s] best interests to have reduced time with her father; but their relationship was still supported to a degree considered to be manageable for [the child]. From [the father’s] account, this shortened time apparently worked well; he reported in glowing terms about his time with [the child] and her apparent shared pleasure. However the contact has completely stopped at this time. [The mother] has now filed to suspend all contact on the basis of ongoing stress and anxiety experienced by her and [the child]; she also seeks to have the father declared a vexatious litigant because the prior and ongoing litigation appears to be a key source of stress for her. [The father] denies having any responsibility for this breakdown in his relationship with [the child]; he blames the mother for being stressed by his actions in seeking to enforce the detail in the parenting orders. The Court now needs to decide whether it is realistic and viable to continue with orders for [the child] having time with her father or not.
43.[The Father] impressed to listen carefully and was observed to nod frequently during his interview. However, it often appeared that the intended communication was not clearly comprehended by [the father], despite ongoing attempts at clarification. It is possible that [the father] has impaired cognitive comprehension although whether this could result from a neurological, intellectual, psychological or from a personality basis is beyond the scope of this assessment. Similar limitations were also noted in the writer’s previous report of September 2011:[13]
[13]It should be noted that this report was not read again prior to the interview with the father but rather was referred to during the writing process where it became obvious that many of the themes discussed were still relevant.
[The father] appeared better able to stay appropriately attuned during the interview although his personal and inter-personal insight appeared to be limited at times; this might be due to a genuine limitation for insight and self-reflection. (paragraph 16)
And also
It was not clear whether [the father] is evasive at times or whether his thinking and life events have been relatively chaotic so that straightforward responses are difficult for [the father]. (paragraph 17)
And also
If [the father] has a genuine frequent confusion about verbal interactions and arrangements with others, this could be suggestive of an underlying pervasive psychological disorder in relation to social discourse and relationships. If he is simply disingenuous at times, it would be suggestive of a personality disorder or perhaps evasiveness. (paragraph 19)
Also a similar observation was made in the conclusions of the report by Dr W in May 2008:
“…it would appear that [the father] demonstrates some personality characteristics that hinder his ability to communicate effectively with [the mother], to empathize with her situation, and/or avoid unnecessary stress and upset for [the child]”.
And also
In the case of [the father] it would appear that he has little or no understanding of the impact his actions are having on [the mother] or ultimately on [the child].”
I accept the assessment of the father made by the Family Consultant in these paragraphs as I do in terms of her comments and assessments of the mother in paragraphs 22 and 44 of the October report, where she said:-
22.She [the mother] impressed as being highly anxious to comply with all directives in relation to court proceedings; she was very distressed to be unwell during the process. To the extent that it appeared that the ongoing litigation between her and [the father], and the management of their parental interactions for the purpose of his time with [the child], has become the primary focus in [the mother’s] life. It appears that she is conscious at all times of possibly having to justify any of her actions in the context of future litigation. She appeared to be ‘looking over her shoulder’ constantly, with consequential suspicion and fears about events such as mail arriving at her home which may, or may not, had been hand delivered.
44. The family consultant has had a longitudinal involvement with the family. Throughout this time, [the mother] has reported her personal distress about the evident trait of strong persistence in [the father’s] personality. However, [the mother] has never overtly spoken against his having a good relationship with [the child]; she has however consistently sought to have a less anxious, safer and more pleasurable relationship for [the child] with her father. It is the consultant’s opinion that if [the child’s] time with [the father] had progressed without the litany of concerns and anxiety-raising issues that have been reported since 2006, [the mother] would have been fully accepting of this and a co-operative parenting relationship could have been developed for the benefit of [the child].
This assessment is consistent with the mother’s approach in taking the child to see Dr W and the Children’s Contact Centre in May 2013. I accept that the behaviour and approaches adopted by the father have had a significant emotional impact on the mother. I accept the evidence of the Family Consultant, that from her observations, she has not seen signs that the mother is unduly influencing the child. Quite the contrary, the mother has facilitated the time despite her dislike of the father.
The Family Consultant went on to say:-
45.The situation that presents to the Court in 2013 is far more difficult than that of 2006. [The child] is of an age to express clear views; moreover she has a high level of maturity as well as being very articulate. She is a somewhat anxious youngster, but not excessive to the circumstance. She indicates that she would have a very high degree of anxiety in openly expressing herself to her father, especially during any extended time that they might have alone. She has previously felt frustrated by his responses in joint therapy sessions. However, [the child] has been too polite, or not confident in standing her ground, or to speak firmly, clearly and directly to her father about her views. Indeed this would likely be very difficult due to his pervasive problems with communicating. Not surprisingly, [the father] has developed a different view of their relationship than has been experienced by [the child]; he has experienced their relationship differently to how [the child] has experienced it. When [the child] has felt brave enough to express herself to him – on the phone, about the court proceedings – she has felt betrayed by her father ignoring her clear views. In refusing to hear [the child’s] views or to respect her limits to their relationship, [the father] has confirmed all the negative aspects of [the child’s] previous experiences of him, to the extent that she now struggles to also credit the previous positive aspects of their relationship.
46.Court orders have provided [the child] with the time and opportunities over the years while she was young to develop a sound relationship with her father. It is up to parents themselves to create such warm and supportive relationships with their children. While this may have been experienced by [the child] with her father from time to time, their contact time has also been a significant direct source of stress and anxiety for her. This cannot continue. [The child] requires sufficient time to regain her psychological security and time to develop the maturity to interact with her father in ways that will not cause her further distress. This will require a suspension of contact time until [the child] freely chooses to have some contact with her father.
47.If this is supported by the Court, it would be advisable that [the child] maintains some contact with the paternal side of her family; this would provide an avenue for renewing her relationship with her father at a suitable time and in a safe manner in the future. It is suggested that [the child] could spend time with her Nan at neutral venues or at times when [the father] would not visit the grandmother’s home. Such visits could be negotiated directly between the grandmother and the mother and could occur at least monthly and during school holidays. When [the child] does agree to see her father again, this should occur only in the company of her Nan and preferably in a public place. [The father] would need to avoid any suggestion of pressure on [the child] to spend individual time with him, at his own home or elsewhere. [The child] would experience any future pressure from him about this as further confirmation that he does not abide to the word ‘no’.
I accept this evidence of the Family Consultant.
As to the views of the child which consolidated when the mother was served with further proceedings in late April 2013, the Family Consultant expressed the view that the child is a ‘mature child who was expressing her own views’. In detail the Family Consultant said:-[14]
30.… she [the child] is a tall, pretty young lady who presents with a shy smile and with considerable poise …
31.The information disclosed by [the child] impressed to be her considered views based on her own recall of events and experience. In no sense did [the child] impress to be alienated because of undue influence by her mother. However, it is likely that she is closely in line with her mother and [the child] acknowledges that she becomes stressed when her mother is stressed. That is, [the child] manages better emotionally when the mother is not stressed. It was evident that if the time with the father was occurring successfully, [the child] would feel fully supported by her mother and having such time with him. There was no evidence of any unintentional negative evidence on [the child] from [the mother].
[14]Exhibit ICL 2.
I accept the accuracy of the descriptions of what the Family Consultant saw and heard as is set out in paragraphs 32, 33, 34, 35, 36, 37 and 38 of her October 2013 report and where the child describes the difficulties she has in terms of her inaction with the father.
The Family Consultant then went on to say:-[15]
39.… She [the child] has now made a decision to stop seeing him [the father] despite this fear. [The child] said that she stopped seeing her dad because ‘he doesn’t seem like a very nice person, we did get on, kind of, but from the past, he just lies, yells and gets angry’. She said the trigger for her decision was when he ‘started taking mum to court again’. She said ‘I just got sick of it happening’ She stated ‘I think it should be my decision … in a few years or something I might decide I will see him. When I am older I will decide. I want to have the control, if I see him and when I see him’.
40.[The child] stated that her father ‘doesn’t tell you bad stuff, he can be good and nice but he has the other side as well’. She said ‘he doesn’t understand what no means, he tried to force me to talk about stuff I don’t want to talk about, he gets angry’. … She said she does not miss seeing her dad, she denied having approached the father when he came to the school events, ‘he comes up to me, I have not gone up to him’. [The child] does not trust that her dad would follow orders for him not to approach her at school in the future. He hasn’t followed orders in the past so what is going to change now? She spoke about feeling ‘stressed’ when correspondence with the father arrives at her home apparently hand-delivered. I asked her about the possibility of having email contact, [the child] said ‘I don’t know what I would have to say to him’.
[15] Ibid.
As indicated at paragraph 43 of the second family report[16] the Family Consultant had concerns about the father’s cognitive comprehension which was in harmony with the report of Dr C.
[16] Exhibit ICL2.
The Family Consultant was concerned that despite the child being robust and managing very well at the moment that if her views were not treated seriously her sense of self-assuredness may be damaged. The Family Consultant was also of the view that further proceedings would detrimentally impact on the child. This is in terms of the stress imposed upon the mother.
The Family Consultant said the child needed relief from the stress of the proceedings. The Family Consultant was cross-examined in relation to the father and said that she did not believe he was straight forward or open. She said that he had high energy and was somewhat manic and appeared to be egocentric.
As indicated earlier, the Family Consultant’s view was that the father displayed very low levels of insight.
The Family Consultant was cross-examined at length by counsel for the father in relation to the mother’s support of the child spending time with the father. That cross-examination did not undermine or impeach the evidence of the Family Consultant.
The Family Consultant was cross-examined in relation to the length of telephone calls between the father and the child. The evidence of the Family Consultant was that the child is a good girl and she would find it hard to stand up against the father. The approach adopted by the child has to be seen in the context of the child’s concerns which are set out in paragraph 37 of the Family Consultant’s second report.
The Family Consultant was cross-examined about the involvement of family therapy and from her view she did not believe the child would manage such a process. The Family Consultant did not see this as a viable solution.
The Family Consultant said that if the Court does not support the child’s views it is likely to impact adversely on the child and the child would, at this crucial age, feel unsupported as she goes into the first year of high school. This evidence was given in the light of a general view that it is important for young girls to have a good relationship with their father.
The evidence of the Family Consultant was cogent, careful and reflected a longitudinal study. It was reliable and I accept that her assessments are accurate and robust. I have given weight to her evidence.
At the request of the parties and the Independent Children's Lawyer I saw the child. This was done in court and in the presence of the Family Consultant and the Independent Children's Lawyer. Neither parent nor their legal advisors were present. The child was present and informed that she did not need to see or speak to me, that the discussions would be recorded and that there would be a report back to her parents. She was informed that the decision was mine and not hers.
The Family Consultant subsequently gave evidence of what the child said which included the child’s views that she did not anticipate contacting the father in the future. This included evidence that the child was unsure about whether she would want to receive birthday cards, Christmas cards and presents etcetera and seemed somewhat nervous about that contact.
In terms of discussions with the paternal grandmother the child was open to seeing her but on her terms. The parents were provided with a transcript of the meeting.
The Family Consultant otherwise confirmed the evidence that the child had provided to her and this was set out in her recent reports.
The Family Consultant’s was cogent and reliable. Her qualifications were not in issue and generally the facts upon which she based her conclusions were sound. I accept her evidence, but bearing in mind that my conclusions were reached having regard to all of the evidence and the relevant factors under Part VII of the Act. I had all of the evidence before me and made findings of fact based upon that evidence. Her evidence was useful to me in making my determinations.
Dr W
Dr W provided evidence contained in reports attached to two affidavits; the first filed and sworn 14 January 2011, the second affidavit was sworn 16 April 2012 and filed 17 April 2012. In addition his report dated 14 May 2008 was tendered as evidence.[17]
[17] Exhibit ICL4.
The May 2008 report of Dr W was a single expert report prepared for the 2008 hearing. In that report Dr W observed that the mother was distressed and the mother asserted of the father a lengthy history of the father not complying with the court orders and said that the father’s (from the mother’s perception) had engaged in unrelenting intrusive behaviour which had caused her distress.
For the purpose of that report Dr W interviewed the child and observed that the child was concerned with how her parents felt in terms of her contact with him.
In that 2008 report Dr W said of the father:-[18]
[The father] needs significant assistance, most probably from a psychologist or suitably qualified medical health professional, to develop a greater understanding of the impact of his actions on [the mother] and [the child] and to develop more effective communication skills.
[18] At page 17.
Dr W later saw the mother as a private patient on a number of occasions and saw the child on a regular basis. In his second affidavit of January 2011 Dr W described himself as ‘a treating psychologist of the child’. He was employed on the referral of the child’s general medical practitioner to assist her in managing her anxiety.
In his 2011 report attached to the affidavit of the same year, Dr W reported of the child:-[19]
[The child] has reported to the author that she does not sleep well, and frequently worries about her next visit with her father. She reports getting very stressed and anxious on the week leading up to spending time with her father. She has stated that she is worried or scared about a number of things in relation to her father’s behaviour, these include:
Her father getting angry with her,
[The father’s partner] getting angry with her,
Her father and [his partner] fighting, and
Her father fighting with other family members.[19] At page 6 of Dr W’s affidavit filed 14 January 2011
Dr W reported the child saying:-[20]
Her father will take her for a drive and they will end up on the East Coast without him telling her where he is going,
Her father will deliver her late to school of a Monday,
Her father will leave her with people who she does not really know,
Her father will come to the school unannounced, andthat her father will not return her at the end of a visit.[20] Ibid at pages 6 and 7.
The child reported a number of aspects of her communication with the father which caused her concern:-[21]
[21] Ibid at page 7.
A lack of consistency and reliability in what will happen on visits and where she will be sleeping when she spends time with father,
The lack of an appropriate bed,
The lack of reliability as to when she is returned to school of a Monday or to the Children’s Contact Service during the school holidays,
The volatile relationship her father has with his partner,
The animosity she has experienced from [the father’s partner] and her daughter,
Her inability to discuss issues with her father,
Her father’s constant calling/texting her on the telephone and harassing her for not ringing him,
Her father attending the child’s school unannounced, and
The distress she frequently experiences when talking to her father on the phone or face-to-face.
As I said earlier, in January 2011, Dr W concluded the issues were long standing and could lead to a no contact order as a result of the ‘chronic nature of this pattern of inappropriate behaviour by the father’.[22]
[22] Heading 8, page 17 Dr W’s report January 2011.
In his second affidavit filed 17 April 2012, which was available in the hearing at that time, Dr W observed that the child’s relationship with the father was improving. The child still wanted limited time and wanted an arrangement where she invited the father to the school rather than have him attend on an ‘ad hoc’ basis.
Dr W said that he was of the opinion that the mother had not been intending to alienate the child from the father. Having heard all of the evidence I am satisfied that this is in fact the case.
After the April 2012 hearing the child did not see Dr W until December 2012 and January 2013. By the time of those appointments the child described the harassment by the father as being as bad as it had ever been. Clearly things were not getting better.
Despite these concerns the child still continued to see the father and the mother facilitated those times.
Dr W was informed that the child had been present when documents were served on the mother on about 29 April 2013. He saw the child on 8 May 2013 where she indicated that she did not wish to see the father. Dr W encouraged the mother and child to try to see the father through the Children’s Contact Service so there could be some structure as to the child’s emotional well-being at the start and the end of times and also that times occurred accurately.
This did not proceed as the child’s emotional state was such that the Children’s Contact Service would not facilitate this contact.
The father lodged a complaint in relation to what he considered as to be improper or unethical behaviour with regard to Dr W.
Dr W was cross-examined by counsel in relation the complaint that had been made about him by the father. Dr W confirmed the complaint had been made and that it had been dismissed or that he had been ‘cleared’
Apart from that implicit criticism there was no cross-examination as to the qualifications of Dr W.
Dr W said that the litigation commenced by the father in March 2013, (and served in late April 2013), was a precipitating factor but not the whole basis for the child deciding not to see the father into the future.
Dr W said in terms of what contact the father had with the child he would be guided by the child’s wishes. He agreed that it was generally good for teenage girls to have a relationship with their father. However, Dr W was unclear of what value family counselling would have for this family having regard to the extensive involvement of health care professionals over some time.
Dr W did not believe the father had the capacity to change his behaviour with the child bearing in mind the history between the child and the father since 2006.
Counsel for the father said that the evidence of Dr W was tainted and should not be accepted as he had not disclosed to the father the previous treatment he had provided to the mother.
I am satisfied that Dr W did provide information about his therapeutic assistance to the mother and the father and that was contained in the report attached to his January 2011 affidavit.
Background
The author was originally involved with this family in the role of a Single Expert and provided a report to the Family Court in May 2008 and also appeared in the Family Court proceedings. More recently, [the mother] and [the child] have been attending with the author in a therapeutic capacity [emphasis added]. [The child] was referred to the author by her G.P. to assist her in managing her anxiety symptoms and to help her manage her going to spend time with her father. [The child] has attended for counselling sessions with the author on 10 occasions in 2010. Whilst she was initially seen with her mother present, on the last 5 occasions [the child] was seen individually by the author. At the request of Mr John Munro ([the father’s]legal representative), the author has also met with [the father] and Mr Munro on two occasions at his offices, once in September and once in December 2010 to assist the parties in respect to [the child] concerns with spending time with her father.
I accept the evidence of Dr W and his observations of the child and his conclusions based upon those observations. He provided expert evidence in the first trial and was trusted by the father to assist this family in therapy. Dr W provided a report for the second hearing and it was only when Dr W saw the child in May 2013 and expressed a view contrary to that of the father that the father commenced to distrust Dr W and complained about him.
Dr W has seen and assessed the child over a number of years and it well able to come to the conclusions that he reached.
Despite the criticisms of the father, Dr W’s evidence is reliable and credible and I accept such evidence. Generally the facts upon which he based his conclusions were sound and I accept his evidence, in circumstances where this conclusion was reached by me having regard to all of the evidence.
Dr C
Dr C is a clinical forensic psychologist who prepared single expert reports in relation to both the father and the mother.[23] Her qualifications were not challenged and are not in issue. Dr C’s task was to consider the parents in terms of any psychological or psychiatric disease or disorders and generally provide a report as to their psychological health.
[23] Exhibits M1 and M2.
In terms of both parents, Dr C undertook a number of assessments. She concluded insofar as the father was concerned:-[24]:
[24] Assessment of father 6 December 2013 - page 14 (page 33 of Exhibit M2).
Mental Health Status
[The father] does not present with any symptoms of a major mental illness. His presentation is somewhat manic, and he possesses personality traits associated with Narcissistic Personality Disorder (but he does not meet full criteria for the latter). Of particular note is [the father’s] result on the PAI indicating a high score for Egocentricity. This trait makes sense of [the father’s] reported persistent harassment of [the mother] and [the child], despite reportedly causing distress. The presence of this personality trait would predict lack of empathy (i.e. incapacity to accurately imagine the feelings of others), lack of remorse for such actions, and a sense of entitlement (i.e., feeling the rules don’t apply to them, or feeling justified in one’s actions, or expecting special treatment).
Stalking
As noted in the original report regarding [the mother’s] assessment, [the mother’s] presentation is consistent with that of a stalking victim. In addition, [the mother’s] description of [the father’s] reported persistent harassment of herself and [the child] is consistent with descriptions of stalking behaviours. Research informing the assessment of stalkers and the risks they present suggests that stalkers “frequently lack insight into their behaviour and tend to deny, minimize, and rationalize their actions” (Mullen, et al., 2006, p.441). Mullen and colleagues add that “ex-intimates are the stalking victims most likely to be threatened and assaulted” (p.442), while “persistence [of stalking behaviour] seems higher among ex-intimates” (p.443).
Violence Risk
[The father’s] results on the PAI indicated that he is able to manage his anger without difficulty, and noted no problems with regards hostility or aggressive behaviours. This is protective in terms of identifying current violence risk. [It is of note that risk assessments can only be based on the information and presentation current at the time of assessment, and may be revised as circumstances change.] Mullen and his colleagues (as cited above) provide guidance in terms of identifying risk factors for violence in stalking situations. If [the mother’s] description of stalking behaviours by [the father] is accepted, then there are a number of significant clinical and future risk factors present. These most notably include:
· Justifying the stalking behaviour
·Willingness to contravene legally imposed restrictions (i.e., parenting agreements, FVOs, driving restrictions)
· Likely future contact (due to co-parenting [the child])
To mitigate these risk factors, Mullen et al. recommend at a minimum that “every effort should be made to enforce a total ban on direct contact or direct communications” between stalker and victim (p.446) [original emphasis]. [Footnotes omitted].
In considering the term ‘frequent’ Barker J, in Fuller v Toms (supra) had had regard to the comments of Toohey J in Jones v Cusack [1992] HCA 40: (1992) 109 ALR 313 where he said:-[72]
… I must be satisfied that he "frequently and without reasonable ground has instituted vexatious legal proceedings". There is a question here, as there was in the application against Mr Skyring, whether process which has been refused leave to issue is a legal proceeding which has been instituted. For the reasons given in the other application, I am of the opinion that, while the process itself has not been issued, the application for leave to issue the process does itself constitute the institution of legal proceedings. On that basis, how many legal proceedings has Mr Cusack instituted? The summons dated 17 June 1985, the summons dated 20 February 1989, the notice of motion dated 20 March 1989, the notice of motion dated 29 May 1991 and the notice of motion dated 16 July 1991 readily answer that description. So too does the application which led to the refusal on 9 July 1985.
[72] At 315.
These two contravention applications must be seen in the context of the overall conflict between the parties. The child was struggling in terms of her father and his behaviour including the demands he made of her for additional time; the father had been informed that his continued harassment and approach was likely to end that relationship. The father knew of the emotional fragility of the mother and yet presented her with a large number of seemingly baseless complaints contained in proceedings from 13 November 2012 onwards.
Davies J in Attorney General in and for the State of New South Wales v Gargan (supra) noted that the test for frequency is less demanding than the test that was acquired under s 84 of the Supreme Court Act1970. That test was the one referred to by Roden J as in the context of the ‘habitually and persistently without reasonable grounds’ ‘persistently’ approach. I agree that the term ‘frequently’ is less demanding.
I have considered the term ‘frequently’ in the context of the contravention applications. The November 2012 contravention had four to six separate parts to it and those were, in many respects, reflective of greater numbers of alleged breaches of the April 2012 orders. The contravention application was prepared by a solicitor and pursued by the father before Federal Magistrate McGuire (as he then was). On 4 March 2013 the father acknowledged that he was an experienced litigant and had conducted such litigation previously and asserted to that court that he knew what he was undertaking.
As I said earlier, the 28 March 2013 contravention application had some 38 parts to it. Many of the alleged breaches had been included in the previous application, which was dismissed. The attempted re-agitation of the alleged breaches of the telephone orders amount to an abuse of process and many, if not all, of which were groundless.
The number of vexatious proceedings in terms of applications equalled three and if looked at simply on the face of the two contravention applications and one application in a case and the term ‘frequent’ may seem inadequate. The meaning of ‘proceedings’ (in relation to a court) is defined by s 102QA as being that set out in s 4 of the Act.
Section 4 of the Act provides:-
proceedings means a proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
The term defined in s 4 is includes cross proceedings and incidental proceedings. There are at least four proceedings contained in the November 2012 contravention application and thirty eight in the 28 March 2013 contravention application. Proceeding can contain a number of parts which are in themselves proceedings.
In this application for a vexatious proceedings order there are the contraventions and the late filed application in a case. The term “frequently” as a relative term was and is to be considered in the context of the facts of an individual case and in this case, in the context of litigation between these parties.
I am satisfied that the various and numerous contentions of separate contravention of orders, most of which were groundless, constitute a frequent institution and pursuit and conduct of vexatious proceedings in the Federal Circuit Court (previously the Federal Magistrates Court).
The threshold having been established should the Court exercise its discretion set out in s 102QB(2) of the Act and make a vexatious proceeding order.
In parenting proceedings under the Act these principles are to be applied in the context of the welfare and development of the child.
Parenting proceedings under the Act are often very different from other court proceedings. Such proceedings almost inevitably arise out of intensely personal and intimate relationships. Privacy and aspects of a personal nature are routinely exposed to the other party, experts and the Court. The privacy and aspects of personal nature relate not just to the parties but their new partners and most importantly to children.
With the risk of proceedings being repetitive the impact on the parties can be profound. In this case the impact of the proceedings on the child and on the mother has been profound and detrimental over many years.
These proceedings have been running, almost continuously, in one form or another, since 2006. It was in that context that the vexatious proceedings were commenced and prosecuted by the father. This occurred over the moths between November 2012 and June 2013.
The consequence of the orders that I have considered putting into place does not preclude the father unfettered access to all courts, or even the Family Court or Federal Circuit Court, provided it does not involve the mother or the child. The order will place a barrier on his proceedings under the Act only in terms of the mother and/or the child.
Even in that circumstance, the order does not prevent the father from commencing proceedings provided he seeks consent and complies with the Act and establishes that any such proceeding he proposes to commence is not a vexatious proceeding.[73]
[73] Section 102QG(4) of the Act
In considering this vexatious proceedings order, under the provisions of the Family Law Act, this Court has balanced the serious step of restricting a person from commencing proceedings against the need to protect the mother and child from the constant impact of litigation. A vexatious proceedings order, in my view, must be and has been considered in that context.
In these proceedings, I have had regard to the history of the litigation involving the father and the mother and the whole of the litigation between the parties, this includes the vexatious proceedings to which I have referred to earlier. I have also had regard to the letter or note sent by the father shortly before the December 2013 hearing referred to earlier, where the father said he would attend the child’s end of school assembly which in turn was one of the bases upon which an interim order was made on 13 December 2013. This was in circumstances where the child expressed on many occasion a refusal to have contact with the father.
The child in this case is aged 12. There seems to be some issue as to the commencement date of the parties’ relationship however, it is clear that it ended in August 2003. At that time the child was about aged almost two.
There have been a number of Family Violence Orders which were obtained by the mother. She asserts that at separation (August 2003) she obtained a Family Violence Order.[74]
[74] Mother’s trial affidavit at paragraph 16
In April 2006 the mother obtained a Police Family Violence Order for a period of twelve months.[75] I am aware that the earlier matters in 2003 and the 2006 orders, where Police Family Violence Orders were obtained, are not orders of a court or tribunal of the Commonwealth, State or Territory nor did they arise out of proceedings in a court or tribunal of the Commonwealth, State or Territory.
[75] Ibid at paragraph 18
The father breached a Family Violence order on two separate occasions in November 2006. In August 2007 the father entered pleas of guilty to those charges. No conviction was recorded upon him entering into an undertaking for two years in relation to each of the offences.[76]
[76] Ibid at paragraph 20 & father’s police record – Exhibit M7.
In December 2006 an interim Family Violence Order was made by a Magistrates Court and that Family Violence interim order became a final order on 26 November 2007 for a period of twelve (12) months.[77]
[77] Ibid at paragraphs 20, 21 and 22
The father filed a Family Violence Order application in September 2008 but it was not served. In 2008 the mother made an application for a new or extended Family Violence order in the Magistrates Court. That application was contested and in August 2009 a Family Violence Order was made for a period of three years which expired in August 2012.[78]
[78] Mother’s trial affidavit at paragraphs 23, 24 and 25.
I am aware that in the earlier proceedings in 2003 and 2006 where Police Family Violence orders were obtained they were not orders of a court or tribunal of the Commonwealth, State or Territory and as such could not be considered under s102QB(6) of the Act. I accept the evidence of the mother in terms of her history of the family violence proceedings which were relatively extensive between 2003 and 2008.
In late 2006 the child celebrated her fifth birthday. In the same year proceedings were commenced by the father in the Family Court of Australia for orders that the child live with him on an equal time basis. Those proceedings were heard in late 2008 and on 30 September 2008 orders were made that the child live with the mother, the mother have sole parental responsibility and that the child spend time with the father.
On 28 October 2008 the father filed a notice of appeal in relation to the September 2008 orders. That appeal was subsequently abandoned by the father. I have not made a finding that this proceeding was vexatious but it was part of the context to which I referred earlier.
In September 2010 the father filed a contravention application. On 20 October 2010 he filed a further contravention application. The mother asserts that those contravention applications were dismissed. That evidence was unchallenged.
On 14 December 2010 the father filed an initiating application in the Federal Magistrates Court (as then was) seeking parenting orders. On 20 December 2010 the mother filed an initiating application which was treated as a response to the father’s applications. Those proceedings were conducted in that court for just less than one and one half years. Those proceedings were heard and determined in April 2012 and the final orders of 19 April 2012, the detail of which is set out earlier in these reasons, were made.
I have dealt elsewhere with the contravention proceedings commenced in November 2012, the contravention proceedings commenced on 28 March 2012 and the parenting proceedings commenced in June 2012 which were transferred to the Family Court.
The child has been involved in three full parenting hearings. On each occasion an Independent Children’s Lawyer has been appointed and on each occasion the child has been subject to family reports and the like.
The impact on the child has been such that the Family Consultant, in her report of October 2013, recommended that ‘consideration be given to limiting any further proceedings for a period of two years without express leave of the court’.
As I indicated earlier, I am conscious that the remedy is extreme and deprives or restricts the father of his right to access a court.
This procedure of making a vexatious proceedings order is a shield and in Family Law proceedings parties are or have been in a close personal relationship and these will remain. These proceedings involve a need to protect children. That need to protect children from litigation is a requirement which is contained in Division 12A of the Act. Section 67ZN provides a set of principles for conducting child-related proceedings. These include a direction for a court exercising powers to give effect to such principles in performing duties and exercising functions under Division VII of the act or otherwise. One of those principles is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. Another is that the Court is to actively direct, control and manage the conduct of the proceedings that will safeguard the child concerned from being subjected to, or exposed to, abuse, neglect or family violence.
I have considered the evidence in the context of the type of proceeding, the facts and findings and the function of Part XIB to protect individuals, such as the mother and the child and her primary carer who has been adversely impacted by vexatious proceedings and who is at risk of further harm into the future.
I remain conscious that the remedy sought is extreme and deprives or restricts the father of his unfettered right of access to a court.
This application did not arise out of a single proceeding but out of more than one. The vexatious contravention proceedings were instituted and prosecuted, without reasonable grounds and at least with regard to the 28 March 2013 contravention application the father failed to understand the principles of finality of litigation which themselves contained multiple proceedings, and in the words of Perram J ‘rescue court and litigant alike from a Samsara of past forensic encounters’.[79]
[79] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398.
Section 70NEA(1)(b) and s 70NFA(1)(b) of the Act express in terms of “a contravention” and although the Court may deal with multiple alleged contraventions sequentially as a matter of convenience and although those counts may be presented by the applicant in the one document, they should nonetheless be considered individual proceedings in their own right. Each contravention asserted in an application needs to be synthesised to a form of a charge, as it were, to enable the respondent answer each and every such claim.
The Access to Justice (Federal Jurisdiction) Amendment Act 2012 creates the powers in proceedings under the Family Law Act for the making of vexatious proceedings orders which are modelled upon the Vexatious Proceedings Act 2002 (WA). This Western Australian legislation empowers the Supreme Court of Western Australia to make vexatious proceedings orders against particular persons in broad or narrow ways. That State legislation was followed by similar Acts, in Queensland, Northern Territory, New South Wales and Tasmania, namely the Vexatious Proceedings Act 2005 (Qld), Vexatious Proceedings Act 2007 (NT), Vexatious Proceedings Act 2008 (NSW) and Vexatious Proceedings Act 2011 (Tas). These Acts are similar to the Western Australian model.
The New South Wales Vexatious Proceedings Act 2008 has the broadest powers as it enables the Supreme Court of that State to make orders prohibiting a person from instituting any proceedings in New South Wales.
The Access to Justice (Federal Jurisdiction) Amendment Act 2012 amends the Judiciary Act 1903 (Cth), the Federal Court of Australia Act 1976 (Cth) and the Federal Circuit Court of Australia Act 1999 (Cth) to enable the making of vexation proceedings orders staying or prohibiting proceedings in the High Court, Federal Court and Federal Circuit Court.
The powers under the various federal court legislations are limited to prohibiting proceedings in that particular court, whether it be; the High Court, Federal Court or Federal Circuit Court. Noting, of course, that such amendments do not limit or affect any powers that such courts may otherwise have to deal with vexatious proceedings.
Differently, the powers given to courts exercising jurisdiction under the Family Law Act (which would presumably include the Family Court, the Family Court of Western Australia and the Federal Circuit Court) enable such courts to stay, dismiss or prohibit proceedings in that particular court and (more particularly) to prohibit a person from instituting proceedings, or proceedings of a particular type, under the Family Law Act in any court [emphasis added] having jurisdiction under the Act.
The provisions are in some ways narrow as the power of prohibition under ss 102QB(2)(b) applies only to proceedings under the Act but it is in other ways wide in that a vexatious proceedings order can apply to an application under the Act in any court exercising jurisdiction under the Act.
As it particularly applies to the Act, it enables construction of its application in terms of the Act and the particular nature of the proceedings under the Act. In considering the context it should be considered that the nature of proceedings is between parties in close personal relationships.
A vexatious proceedings order in this case is needed to protect both the mother and the child from ongoing damage for the reasons set out above.
The provision to make a vexatious proceedings order pursuant to s 102QB(2)(b) empowers a court to make an order prohibiting a person from instituting proceedings under the Act either generally or to proceedings of a particular type.
It is clear from the words of the subsection that a vexatious proceedings order under this provision can only apply to the institution of proceedings under the Act. Section 102QA makes it clear that Part XIB of the Act does not limit or otherwise affect any powers that a court has apart for Part XIB to deal with vexatious proceedings. In this case the application by the mother is limited to the exercise of the courts powers under s 102QB of the Act.
The mother seeks an order that the father be declared a ‘vexatious litigant’. The scope of that order is challenged by the structure of s 102QB(2)(b) in that it is limited to the Act.
I have considered the scope of that order in the light of the evidence before me in these proceedings and the findings of fact. I conclude that this vexatious proceeding order should be limited to proceeding proposed to be commenced by the father under the Act against the mother and/or about the mother and/or the child.
As I have earlier explained, once an order is made in the terms of s 102QB(2)(b), the provisions of s 102QE(2) to (4) apply. It is consequently therefore not necessary in the order to specify that an application cannot be brought without leave and that any such application for leave and the supporting affidavit cannot be served unless an order is made pursuant to s 102QG(1)(a). Although inserting the words “without first having been granted leave etc.” in the orders is perhaps superfluous, it does provide clarity to the parties.
The status of the father’s Contravention Application filed 28 March 2013 is not entirely clear. On 13 June 2013 Judge McGuire made a series of orders appointing an Independent Children's Lawyer for the child, ordering a family report and directions for trial. As to the applications before him he made the following orders:-
1. The father’s contravention application filed 28 March 2013 be adjourned with liberty to restore.
…
7. The substantive applications be transferred to the Family Court for hearing for trial in respect of all parenting issues and the mother’s application that the father be declared a vexatious litigant on a date to be advised, for an estimated hearing time of four (4) days on a date to be advised.
After being transferred to the Family Court the proceedings were listed before Cronin J for a directions hearing on 21 October 2013. Orders were made on that date which included:-
2. The contravention application filed on 19 June 2013 is withdrawn.
As far as I can determine, no other contravention applications were filed by either of the parties after 28 March 2013. I can only speculate that the father, who was by October 2013 legally represented, purported to withdraw his 28 March 2013 contravention application.
As that application may be a proceeding remaining in existence in the Federal Circuit Court, the father may still have available to him leave restore that application pursuant to the order made 13 June 2013.
As such, I make it clear that the vexatious proceeding order being made by this Court includes a prohibition preventing the father from restoring the 28 March 2013 Contravention Application to the Federal Circuit Court or any other court other than in accordance with the provisions of s 102QE and s102QG of the Act.
INFORMATION TO BE PROVIDED TO AHPRA
During the hearing of the father’s 27 February 2014 application in a case, I raised with his counsel a question of whether a copy of the orders and reasons which may follow these proceedings ought to be provided to AHPRA (in terms of its investigation into the professional behaviour of Dr W).
I have power to make such an order pursuant to the general powers under the Act (particularly as Dr W was appointed a court expert in the 2008 proceedings in this Court). In addition, I have power to make other orders as I consider appropriate, including the order or direction that I raised with counsel for the father, pursuant to s 102QB(2)(c) of the Act.
The course that I was considering was opposed by counsel for the father on the basis that it would be prejudicial to the father’s AHPRA complaint. I disagree, as this Court has had the opportunity of reading and hearing the evidence of the father, the mother and Dr W. Those witnesses were cross examined by counsel for the father and the Independent Children's Lawyer. The evidence of those witnesses was able to be considered in the light of other evidence, including documents, other witnesses such as the school principals and the Family Consultant.
Given the findings that this Court has made generally and the specific findings regarding vexatious litigation these Reasons and their findings and the orders made may be of forensic value in the investigations and determinations being undertaken and considered by AHPRA.
What use AHPRA makes of the Reasons and orders, including whether they are able to use such material will be a matter for AHPRA. I intend to make an order directing the mother to provide to AHPRA a copy of these Reasons and the orders consequent upon them.
In his complaint the father said he would ‘like AHPRA to investigate totally’ including have regard to the evidence from some of the proceedings in the Family Court in December 2013 and the proceedings in the Federal Magistrates Court (as it then was) in April 2012. The father did not seek leave, pursuant to s 121 of the Act, to enable that to occur. A vexatious proceedings order would inhibit that investigation and the father’s wish to adduce evidence in that investigation.
In Tasmania investigations conducted by AHPRA are made pursuant to powers conferred on it by the provisions of the Health Practitioner Regulation National Law (Tasmania) Act 2010 (Tas). The information collected in such an investigation is subject to the National Privacy Principles under the Privacy Act 1988 (Cth). Given the powers of this court pursuant to s 121 of the Act and the associated powers of this court pursuant to s 33 of the Act, I have the power to direct AHPRA not to disclose any identifying information with regard to the parties and the child in terms of its investigation and reports, without the leave of this Court. I propose to make such a direction.
Nothing in any such direction is intended to any way inhibit the legislative powers and obligations which AHPRA exercising in dealing with the complaint. No doubt AHPRA will use appropriate pseudonyms to protect the privacy and identity of the father, mother and the child.
In these circumstances, and bearing in mind the vexatious proceedings order I propose to make, I will give leave for the father use a transcript of the proceedings heard before this Court in December 2013 in his complaint to AHPRA (subject to the direction referred to earlier). Any such transcript would need to be obtained by the father at his own expense. Nothing in these Reasons or the consequential orders is to be taken as creating any obligation on this Court to assist in funding the provision of any such transcript for the father or for AHPRA.
As to the transcript of the proceedings in the Federal Magistrates Court (now Federal Circuit Court) in April 2012, it is not clear whether the Family Court has power to give such leave to use that transcript or if it does have such power, whether it should exercise that power in the circumstances. Given the vexatious proceedings order I propose to make, I will exclude from such order an application made by the father, within a reasonable time, to the Federal Circuit Court to obtain leave to provide a copy of a transcript of those April 2012 proceedings and making such transcript available to AHPRA.
Nothing in these Reasons or the consequential orders is to be taken as creating any obligation on the Federal Circuit Court to assist in funding the provision of any such transcript for the father or for AHPRA. Any such decision would need to be made by that court.
I certify that the preceding five hundred and fifty one (551) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 6 March 2014.
Associate:
Date: 6 March 2014
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