Cardus & Lavrick
[2020] FamCA 579
•17 August 2020
FAMILY COURT OF AUSTRALIA
| CARDUS & LAVRICK | [2020] FamCA 579 |
| FAMILY LAW – CHILDREN – Best interests – allocation of parental responsibility – spend time arrangements for child – where the father seeks shared parental responsibility, weekend time and telephone contact with the child – where the mother seeks sole parental responsibility and that the father have no contact with the child – where the child has certain disabilities – where the father has not spent time with the child for three years – allegations of family violence against the father – family violence intervention order between the father and mother – where there is significant medical evidence of the harm caused to the child by even the possibility of contact with her father – where the child has strongly held views that she does not want any contact with her father – where it is found that it is not in the best interest of the child to have orders which seek to foster a meaningful relationship with her father – orders made for the mother to have sole parental responsibility for the child, for the child to have no time and no contact with the father, for the child to be removed from the Airport Watch List, for the requirement that the father consent to the child obtaining a passport be dispensed with and an order pursuant to s64B(2)(g) of the Family Law Act 1975 restraining the father from making further application without leave of the Court – whether a vexatious proceedings order should be made against the father on the application of the mother pursuant to s 102QB of Family Law Act1975 – Where it is found that the father has not frequently instituted or conducted vexatious proceedings – application pursuant to s 102QB dismissed |
| Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) Australian Constitution s 116 |
| Bondelmonte v Bondelmonte (2016) 259 CLR 662 Fokas v Mansfield as Trustee for the Bankrupt Estate of Maria Fokas (No. 2) [2020] FCA 30 Fuller v Toms 234 FCR 535 |
| APPLICANT: | Mr Cardus |
| RESPONDENT: | Ms Lavrick |
| INDEPENDENT CHILDREN’S LAWYER: | Bowlen Dunstan & Associates Pty |
| FILE NUMBER: | MLC | 8313 | of | 2018 |
| DATE DELIVERED: | 17 August 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | McEvoy J |
| HEARING DATE: | 10 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self-represented |
| SOLICITOR FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Carne |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Southey |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bowlen Dunstan & Associates |
Orders
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child, X (the child), born … 2006.
The child live with the mother, Ms Lavrick.
The child have no contact with the father, Mr Cardus.
Save as provided for in these orders, the father, his servants and agents be hereby restrained from contacting the mother or the child by any means whatsoever, including telephone, internet and passing gifts or messages via third parties.
The father be prohibited from contacting or attending at the child’s home, school or any place where she is involved in extracurricular activities or recreation.
A copy of these orders be provided to the child’s school.
The mother authorise the child’s school to provide directly to the father copies of the child’s school reports as and when such reports become available.
Around the time of the child’s birthday each year until she attains the age of 18 years, the mother is to provide the father with a photograph of the child via a third party.
The father be permitted to send the child a letter or card on four occasions in each calendar year via a third party, the letters or cards be opened by the mother and only provided to the child if the mother considers it appropriate to do so.
The mother be and is hereby authorised to do all acts and things and sign all documents as may be necessary to ensure that the child has a current Australian Passport from time to time, as well as any necessary visa for travel, and the consent of the father shall not be required.
The orders made by Judge Riley in the Federal Circuit Court of Australia dated 11 February 2019 restraining the removal of X, female, born on … 2006 from the Commonwealth of Australia is hereby discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the child’s name from the Airport Watch List at all points of international arrivals and departures in Australia.
As soon as practicable the Court forward a copy of this order to the Australian Federal Police.
The mother be at liberty to cause a copy of the Family Report of Mr B dated 8 April 2019 to be provided to the child’s treating professionals (including any such professionals appointed after the making of these orders).
The father keep the mother informed about his current residential address and contact details via a third party.
Pursuant to s 64B(2)(g) of the Family Law Act 1975 (Cth) (the Act), the father be restrained from making any application under Part VII of the Act in relation to the child X born … 2006 without first making an ex-parte application seeking and obtaining leave of a Judge of the Family Court of Australia and for that purpose:
(a)the father must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking such orders;
(b)unless otherwise ordered, such application is not to be served on the mother or any other person.
The father file and serve written submissions on the question of costs by 4.00 pm on 24 August 2020.
Should she wish to do so, the mother file and serve written submissions in reply to the father’s written submissions on the question of costs by 4.00 pm on 31 August 2020.
The appointment of the Independent Children's Lawyer be discharged within 30 days from the date of this order.
That save for the mother’s application for costs, all extant applications be otherwise dismissed.
Pursuant to sections 62B and 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the 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.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cardus & Lavrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8313 of 2018
| Mr Cardus |
Applicant
And
| Ms Lavrick |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are the Applicant father, Mr Cardus (“the father”) and the Respondent mother, Ms Lavrick (“the mother”). The proceedings concern parenting arrangements for the one child of the relationship, X born in 2006 (“the child”), currently 14 years of years of age.
The child was conceived during a casual intimate relationship the parties had in the period from 2003 until 2005. The parties did not live together during their relationship. The child has always lived with the mother. Throughout the child’s life the father has had but intermittent and ad hoc time with the child until he ceased having time with the child in about August or September 2017. As such, the child has not seen the father for some three years.
The child has Asperger’s Syndrome, High Functioning Autism, Irritable Bowel Syndrome, and other learning difficulties. She is required by her treating health professionals to be on a strict diet.
The issue is parental responsibility and spend-time arrangements for the child. While the father accepts that the child should live with the mother, he says that he and the mother should share parental responsibility, and that the child should spend time living with him every other weekend, and that they should have time on the telephone one night each week. The father also seeks orders restraining the mother from “imposing any religious observance upon the child”, that he be permitted to attend the child’s school events, and that he be entitled to have reports and other communications from the child’s school.
The mother seeks sole parental responsibility, and that the child have no contact with the father. She says that it is not in the child’s best interests to spend time or communicate with the father. Her position is that the child is estranged from the father, and that the child has made plain her views that she is strongly opposed to spending time with him, and having a relationship with him. The mother proposes a regime of orders strictly to regulate any communication between the father and the child, the renewal of the child’s passport, and to have the child’s name removed from the Airport Watch List.
The mother also contends that the father has used the process of this Court and the Federal Circuit Court of Australia to embarrass, harass and cause financial hardship to her. On this basis she seeks a vexatious proceedings order pursuant to s 102QB(2)(c) of the Family Law Act 1975 (Cth) (“the Act”), the effect of which would be to restrain the father from filing any further application in this proceeding without the leave of the Court before the child’s 18th birthday. In the alternative the mother seeks an order to similar effect pursuant to s 64B(2)(g) of the Act.
For his part, the father contends that it would be in the best interests of the child to be able to have a relationship with him. He says that the mother and her parents have alienated the child from him, that they have coached the child to say that she does not want a relationship with him, and that the child should not attend the church secondary school at which she is presently enrolled because it is in her best interests to have a secular education. At the commencement of the trial the father also claimed that the family report writer was biased against him and that another family report was required, and that the Independent Children’s Lawyer (“the ICL”) should be removed because he is “incompetent, lazy and partisan”. I heard the applications that the father made in relation to these latter two matters on 10 December 2019, and dismissed them, providing reasons ex tempore at the time.
The ICL is supportive of the mother’s proposed orders, and seeks orders in substantially similar terms. Paradoxically however, although in his outline of case document filed 5 December 2019 the ICL seeks an order that the father be prohibited from filing any further applications before the child’s 18th birthday, his application for an order in these terms is not mentioned or otherwise addressed in his outline of final submissions filed 16 December 2019.
The central issue for determination therefore is whether it would be in the best interests of the child for her to have a relationship with her father along the lines that he proposes, or whether in all the circumstances it would be preferable for the child to have no contact with her father. The issue of parental responsibility is integrally linked to this issue.
For the following reasons I have formed the view that the evidence, particularly the medical evidence and the evidence of the family report writer, is so strongly against the child having time with her father that, in all the circumstances, her best interests demand that the father’s application be dismissed and that there be orders broadly in accordance with the regime proposed by the mother and the ICL. Accordingly, there will be orders for the mother to have sole parental responsibility, for the child to live with the mother, for the child to have no contact with the father, and for ancillary matters. There will also be orders that the mother be authorised to apply for a passport without needing the consent of the father, and for the child’s name to be removed from the Airport Watch List.
The mother’s application for a vexatious proceedings order is, however, more difficult to sustain. For reasons I will explain, I am satisfied that the institution and maintenance of these proceedings by the father has been vexatious in the sense that it has been an abuse of the process of the Federal Circuit Court and this Court because it was instituted and has been conducted primarily to harass and annoy the mother and to achieve a wrongful purpose. That wrongful or collateral purpose was to procure the cancellation of a Departure Prohibition Order (DPO) which the Child Support Agency (CSA) had imposed on the father by reason of his non-payment of a child support debt. Notwithstanding this unfortunate reality, and although the matter is finely balanced, I am not satisfied that the father is a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals in relation to the mother for the purposes of s 102QB(1)(a) of the Act. Accordingly, there will not be an order pursuant to Part XIB of the Act that the father be restrained from filing any further applications in relation to the child before the child’s 18th birthday.
Nonetheless, having regard to the best interests of the child, and my finding that the institution and maintenance of the proceeding has been an abuse of process, it is appropriate that there be an order pursuant to s 64B(2)(g) of the Act or in the Court’s inherent jurisdiction restraining the father from making an application under Part VII of the Act in relation to the child without leave in the terms sought by the mother.
Background
As has been mentioned, the parties have never lived together, and the child has spent very limited time with her father since she was born. It is uncontroversial that the mother has been the child’s primary, if not sole, caregiver for the entirety of her life, and that the mother and her parents have been almost exclusively responsible for the financial upkeep of the child. Until relatively recently the father has not sought to disturb the status quo in this respect.
For most of the child’s life the mother and the child have lived with the mother’s parents in a flat on their property, however in September 2017 the mother and the child moved into their own home. At the time of the trial in December 2019 the child was in her first year of secondary school, at a church school in outer Melbourne. She is presumably now in her second year.
For reasons which it will be necessary to analyse in further detail, the present dispute between the parties appears to have arisen in late 2017 in the context of outstanding child support payments and the imposition of the DPO on the father which prevented him from travelling abroad. Proceedings were commenced by the father in the Circuit Court in July 2018, and since that time the father has filed three further applications in a case, either in the Circuit Court or in this Court. As has been mentioned, the father made two further applications during the trial: effectively for the removal of the family report writer, and for the removal of the ICL. The history and conduct of the litigation by the father has an important bearing on the orders sought by the mother pursuant to s 102QB or s 64B(2)(g) of the Act.
Also relevant in this regard is a proceeding commenced by the father against the mother in the Victorian Civil and Administrative Tribunal (“the VCAT proceeding”) in August 2017, the father’s conduct in defence of the mother’s Intervention Order (IVO) application in the Magistrates’ Court of Victoria in February 2018, the father’s multiple applications to the CSA, and the father’s abandoned application to the Department of Foreign Affairs and Trade (DFAT) alleging that the mother had forged his signature on the child’s passport. It will be necessary to return to each of these matters in considering whether the father has fulfilled the criteria for the making of a vexatious proceedings order.
History of These Proceedings
The father’s Initiating Application was filed in the Circuit Court on 23 July 2018. By that application the father sought interim orders for “access” to the child each alternate Sunday from 10.00 am to 4.00 pm, and final orders for “access” each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday, and half of school holidays.
The mother filed a Response to Initiating Application on 28 August 2018 seeking interim and final orders for sole parental responsibility and that the child live with her.
A judge of the Circuit Court heard the father’s application for interim orders in the judicial duty list on 3 September 2018 and made orders adjourning the matter to the judicial duty list on 11 February 2019 for directions, that a s 11F child inclusive conference occur, and that a memorandum be prepared by a family consultant and provided to the Court and the parties.
On 16 October 2018, some six weeks after these interim orders, the father filed an Application in a Case seeking, amongst other things, supervised time with the child and that the child be enrolled in a secular school.
The mother filed a Response to the father’s 16 October 2018 Interim Application on 8 February 2019 seeking the preparation of a family report, the appointment of an ICL, that the father sign documents for a new Australian passport for the child, that the mother retain the passport, and that the mother notify the father of any intended overseas travel.
On 11 February 2019 another judge of the Circuit Court made interim parenting orders and adjourned the father’s Initiating Application of 23 July 2018 for an interim defended hearing on 7 May 2019. Orders were made that the child’s name be placed on the Airport Watch List, that she be restrained from leaving the Commonwealth, for the appointment of an ICL, that the mother be restrained from denigrating the father to the staff at the child’s school, for the mother to take the child to psychological sessions and that the mother advise the psychologist that psychology sessions have been ordered by the Court to have an emphasis on the repair of the child’s relationship with the father, and for the preparation of a family report. The matter was also referred to the CSA to collect child support arrears from the father.
Less than a fortnight later, on 21 February 2019, the father filed a further Application in a Case seeking orders that he provide the child with a mobile telephone to call the child at scheduled times, other orders relating to access to school records/reports, and that he be permitted to attend at school related activities.
On 6 March 2019 the mother filed a Response to an Application in a Case seeking that the father’s 21 February 2019 application be dismissed, that the order made 11 February 2019 restraining the mother from denigrating the father to the staff at the child’s school be discharged, that both parties be restrained from denigrating the other to staff at the child’s school, that the father be restrained from filing any further application in this proceeding without leave of the Court, and an order for indemnity costs. It will be necessary to return to the unusual circumstances in which the mother came to seek that the parties be restrained from denigrating one another to staff at the child’s school.
On 7 March 2019, a judge of the Circuit Court adjourned the father’s 21 February 2019 application to be heard on 7 May 2019, reserving the costs of that application.
On 6 April 2019 the family report prepared by the family consultant, Mr B, was released. The substance of Mr B’s report was that while the mother had a close relationship with the child and was extremely child-focussed, the relationship between the father and the child had broken down and the father displayed a lack of insight as to his role in this occurring. It will be necessary to address in some detail the conclusions reached by Mr B.
On 15 April 2019 the mother filed an Application in a Case seeking orders that the matter be transferred from the Circuit Court to this Court, that the orders made 11 February 2019 restraining the mother and the father from attempting to remove the child from the Commonwealth and restraining the child from leaving the Commonwealth be discharged, and that the child be removed from the Airport Watch List.
On 2 May 2019 the mother filed a further Application in a Case seeking, amongst other things, that until further order she have sole parental responsibility for the child, that the child live with her, that the father be prohibited from attending the child’s home, school, or any place where she was involved in activities, that the father be restrained from filing any further application in this proceeding without leave of the Court, and an order for costs.
On 7 May 2019 orders were made transferring the proceeding to this Court for hearing.
On 1 July 2019 the father brought a further Application in a Case, by now his third such application in less than a year, seeking the urgent reintroduction of unsupervised time with the child in much the same terms as his original application. On 30 August 2019 this matter came before Johns J for a directions hearing during which the father indicated that he had read s 102NA of the Act and confirmed that he understood that this section prevented him from personally cross-examining the mother and that it would be necessary for him to make an application to Victoria Legal Aid under the cross-examination scheme for representation should he seek to do so. Johns J made orders that s 102NA(2) of the Act would apply to any cross-examination during the trial, and listed the matter for final hearing before her on 9 December 2019. Consistently with the trial orders made by Johns J the mother filed an Amended Response to Initiating Application on 11 October 2019, and the father filed an Amended Initiating Application on 14 October 2019.
Proposals of the Parties
The father’s specific proposal is that the child spend time with him each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, that he have telephone contact with her for up to 30 minutes each Wednesday, and that he be allowed to attend all school events and activities which are open to parents. In cross examination the father conceded that he would be prepared to accept a return to the previous arrangements of each alternate Sunday from 10.00 am to 4.00 pm. The father also proposes that the Court make orders restraining the mother from imposing any religious observance upon the child.
Both the mother and the ICL propose that the father have no time with the child and that he be restrained from contacting the mother and the child by any means. They propose that the mother provide the father with a photograph of the child once a year via a third party and allow the father to provide a letter to the child four times a year, with it being at the discretion of the mother if this is passed onto the child or not. The parties agree that the father should have access to the child’s school reports.
Insofar as the proposals of the parties concerning the child’s passport and her presence on the Airport Watch List is concerned, the father’s Amended Application for Final Orders and his trial affidavit were silent on this matter. However, in his final written submissions the father seems to maintain the position that the child should remain on the Airport Watch List and the mother be restrained from applying for a passport for the child, at least in the medium term.
Material Relied Upon
The father relied upon the following documents:
a)Amended Initiating Application filed 14 October 2019;
b)his trial Affidavit filed on 14 October 2019, including a report of Dr C;
c)Outline of Case filed 6 December 2019; and
d)written closing submissions filed 14 January 2020.
The mother relied upon the following documents:
a)Amended Response to Initiating application filed 11 October 2019;
b)Outline of Case filed 4 December 2019;
c)her trial Affidavit filed on 11 October 2019;
d)Affidavit of her mother, Ms D, filed 11 October 2019;
e)Affidavit of Dr G filed 12 November 2019;
f)Affidavit of Ms F filed 19 November 2019;
g)Family Report of Mr B dated 6 April 2019; and
h)written closing submissions filed 20 December 2019.
The Independent Children’s Lawyer relied upon the following documents:
a)Outline of Case filed 5 December 2019;
b)Family Report of Mr B dated 6 April 2019;
c)Affidavit of Dr G filed 12 November 2019;
d)Affidavit of Ms F filed 19 November 2019; and
e)written closing submissions dated 16 December 2019.
The Statutory Regime and Relevant Principles
Best Interests: Objects, Principles and Considerations
Part VII of the Family Law Act 1975 (“the Act”) is concerned with children. It sets out the objects, principles and matters that must be considered when determining what parenting order is proper. In proceedings for a parenting order, the Court may, subject to s 61DA (the presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII, make such parenting orders as it thinks proper: s 65D(1).
A “parenting order” is defined in s 64B of the Act and may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children who are the subject of the proceedings: s 60CA of the Act.
Section 60B(1) of the Act sets out the objects of Part VII, which are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s 60B(2) of the Act. They are that, unless it would be contrary to the best interests of a child:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Ascertaining the best interests of a child by reference to the Act’s mandatory considerations must recognise that, as the High Court observed in CDJ v VAJ (1998) 197 CLR 172 at 219, [152]:
It is a mistake to think that there is always only one right answer to the question of what the best interest of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898, Lord Fraser of Tullybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. Section 60CC(2)(a) provides that a primary consideration will be the benefit to the child of having a meaningful relationship with both of the child’s parents. However the effect of s 60CC(2A) is that the Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Family violence is defined in s 4AB(1) as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Examples of this, as s 4AB(2) sets out, include an assault, a sexual assault or other sexually abusive behaviour, repeated derogatory taunts, unreasonably denying a family member financial autonomy, unreasonably withholding financial support, intentionally damaging or destroying property, and preventing a family member from making or keeping connections with his or her family, friends, or culture. Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order.
When determining what is in the best interests of the child the relevance of the primary and additional considerations and the weight to be given to them will depend upon the particular circumstances of each case: Poisat & Poisat (2014) FLC 93-597, at 79,389. As to the manner in which the Court is to take those considerations into account, in Donnell & Dovey (2010) FLC 93-428 the Full Court said that the considerations may be seen as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion” (at 84,584). In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed at 83,449 as follows:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Original emphasis)
As the High Court observed in U v U (2002) 211 CLR 238, the Court’s power in making a parenting order is to make orders it considers to be in a child’s best interests and it is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44], and Hayne J at [169]-[171] agreed).
Parental Responsibility
Subject to the Court making an order changing the statutory conferral of joint parental responsibility, s 61C of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, but that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child (or other relevant child) or family violence. The presumption may be rebutted where the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA of the Act.
When the presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with both parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable for the child to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
It will be by reference to s 60CC of the Act that the Court will consider the best interests of the child in the context of determining parental responsibility. Findings about the best interests of the child, having regard to the s 60CC considerations, are required to be made in order to come to a conclusion as to whether the presumption in s 61DA, if it applies, is to be rebutted.[1]
[1] See the discussion in Hardie & Capris [2010] FamCA 1046 at [60]-[61]
Section 65DAC is concerned with the sharing of parental responsibility. Where a parenting order provides that there is to be a sharing of parental responsibility and the exercise of that parental responsibility will involve making a decision about major long-term issues in relation to the child, the order is taken to require the decision to be made jointly: s 65DAC(2). Thus, and significantly in this case, the persons making the decision would need to be able to consult one another in relation to the decision to be made, and be able to make a genuine effort to come to a joint decision about that issue.
The power to make a vexatious proceedings order
Having regard to the mother’s application for a vexatious proceedings order, attention must be given to the terms of Part XIB of the Act. Part XIB is concerned with vexatious proceedings and was inserted into the Act by the Access to Justice (Federal Jurisdiction) Amendment Act 2012. The Explanatory Memorandum to that Act states that the provisions are intended to:
… provide a consistent and more comprehensive legislative framework for the federal courts to deal with vexatious proceedings brought by persons who have frequently instituted or conducted vexatious proceedings in Australian courts and tribunals, or who are acting in concert with others who have done so.
Section 102Q(1) of the Act contains the following relevant definitions:
Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.
institute, in relation to proceedings, includes:
(a)for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and
(b)for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and
(c)for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and
(d)for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.
proceedings:
(a)in relation to a court—has the meaning given by subsection 4(1); and
(b)in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.
proceedings of a particular type includes:
(a)proceedings in relation to a particular matter; and
(b)proceedings against a particular person.
vexatious proceedings includes:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Division 2 is entitled Vexatious proceedings orders. Section 102QB empowers the Court to make a vexatious proceedings order against a person, including an order that the person not commence proceedings in the Court. It is in the following terms:
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
…
(2)The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
Note:Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
…
(c)a person against whom another person has instituted or conducted vexatious proceedings;
(d)a person who has a sufficient interest in the matter.
(4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5)An order made under paragraph 2(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
The consequences of a vexatious proceedings order may include that the person the subject of the order is precluded from instituting proceedings, or proceedings of a particular type, without the leave of the Court: s 102QD(1)(a). The Court’s power to grant such leave is fettered, because leave may be granted only if the Court is satisfied that the proceeding is not a vexatious proceeding: s 102QG(4).
In Pencious & Searle [2017] FamCAFC 210 at [72]-[76] (Bryant CJ, Ryan and Aldridge JJ) the Full Court referred to and approved some general principles that have emerged from consideration in other jurisdictions of statutory provisions analogous to s 102QB of the Act. In relation to the question of what is meant by “frequently” in the context of vexatious proceedings, their Honours referred with approval to what was said by Leeming JA, with the concurrence of Basten and Meagher JJA, in Potier v Attorney General (NSW) (2015) 89 NSWLR 284 at [114]-[120] (Potier) as follows:
114.The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia. The meaning of a word like “frequently” turns very much on its context; that is no different from many other protean words (such as “adversely affect” and “mistake”: cf Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [2] and [57] and CTM v The Queen [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that “frequently” is a relatively low threshold.
115.First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of “habitually and persistently” was deliberate, and plainly lowered the threshold condition.
116.Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.
117.I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of “frequently”. This illustrates the fact that “[t]he issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation”: Viavattene at [49].
118.Each of those considerations favour “frequently” being a relatively low threshold.
119.The parties exchanged submissions on whether the proportion of proceedings instituted by a person being found to be vexatious was relevant to whether the threshold condition is satisfied. I do not think that it is. The statute requires the Court to be satisfied that a person has instituted or conducted vexatious proceedings frequently; whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. By the same token, suppose the question is whether a traveller will frequently encounter rabid dogs in a particular area. The answer does not turn on how many non-rabid dogs the traveller is likely to encounter in the area.
120.That said, the proportion of proceedings which are vexatious is highly relevant to the exercise of discretion to make an order, if the threshold condition is satisfied. For an order may bear upon all proceedings instituted or conducted by a person, and it will be essential for the Court to bear in mind its operation on existing and likely future proceedings, particularly those which are not vexatious.
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The Full Court in Pencious & Searle also referred with approval to Perram J’s statement of the general principles that apply to applications for vexatious proceedings orders in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [2]-[12] (Gargan):
2.A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
3.Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
4.Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
5.Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
6.Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
7.Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
8.Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
9.Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
10.Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
11.Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.
12.Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
(Original emphasis)
It is to be noted that in Gargan, Perram J was concerned with the then relevant vexatious litigant provisions in Order 21, rule 1(1) of the Federal Court Rules 1979 (Cth) as in force at the time.
More recently, in Fokas v Mansfield as Trustee for the Bankrupt Estate of Maria Fokas (No. 2) [2020] FCA 30, [36]-[39] (Fokas), Wheelahan J distilled certain of the principles underlying the operation of the vexatious proceedings provisions in Part VAAA of the Federal Court of Australia Act 1976 (Cth) which are substantially similar to the provisions of Part XIB of the Act. In relation to the meaning of the word “frequently”, his Honour emphasised at [38] that “frequently” is a relative concept, which must be viewed in context. Wheelahan J observed also that the number of proceedings instituted need not be large in order for it to be considered frequent, and that the number of proceedings may be small if a litigant attempts to re-litigate or re-agitate an issue previously determined by the court, referring in this respect to HWY Rent Pty Ltd v HWY Rentals (in liq) (No. 2) [2014] FCA 449 at [111]-[114] (Perry J), which was approved by the Full Court of the Federal Court in Fuller v Toms 234 FCR 535, at [33]-[34]. His Honour also considered the relevance of s 91 of the Evidence Act 1995 (Cth) in the context of evaluating whether the Court could be satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. After a comprehensive review of the authorities his Honour concluded at [66] that s 91 is not infringed by relying on orders and reasons for judgment in other proceedings for the purposes of considering whether s 37AO(1) of the Federal Court of Australia Act 1976 (the cognate provision to s 102QB(1) of the Act) is engaged.
It is clear that the burden of the authorities is to the effect that the question of whether a person has “frequently” instituted or conducted vexatious proceedings imposes a relatively low threshold, and that the number of proceedings need only be small if the litigant is attempting to re-litigate or re-agitate an issue which has previously been determined. Nonetheless, even in Potier Leeming JA contemplated that there would need to be at least “a handful of large proceedings” to satisfy the statutory test of “frequently” relevant for the purposes of s 8 of the Vexatious Proceedings Act 2008 (NSW). In addition, it must always be borne in mind that a vexatious proceedings order is an extreme measure and should not be made lightly: Gargan at [2], [4]; Soden v Kowalski [2011] FCA 318 at [35] (Stone J); Fokas at [36].
The question therefore in these proceedings is whether the number of proceedings and collateral applications instituted and conducted by the father against the mother enables a finding to be made that the father has frequently instituted or conducted vexatious proceedings in Australian courts and tribunals such as to enable the making of a vexatious proceedings order pursuant to s 102QB of the Act. If it does not, the remaining question is whether there is a basis for the making of other orders against the father which could serve to limit his capacity to make further applications in relation to the child.
In this respect it may be observed that in Sandex & Bondir (No 2) [2017] FamCAFC 130 at [11]-[12], [31]-[32] (Strickland, Ainslie-Wallace and Loughnan JJ) (Sandex & Bondir) the Full Court appeared to accept the appropriateness in that case of orders pursuant to s 64B(2)(g) of the Act restraining the making of any application under Part VII of the Act in relation to children without first making an ex parte application seeking and obtaining the leave of a judge. Axiomatically, a parenting order must be one made in the best interests of the child. It may be accepted therefore that this, perhaps rather more than considerations of whether there has been vexatiousness by one party in the conduct of the litigation, is the criteria by which such an order pursuant to s 64B(2)(g) of the Act may be made. In reality of course these matters will often be interlinked.
Also relevant to the question of what other orders can be made are the terms of s 102QA of the Act, which provide that Part XIB does not limit or otherwise affect any powers that a court has, apart from Part XIB, to deal with vexatious proceedings. In this respect it may be accepted that the Court has implied power to protect its own processes should the need arise: Jackson v Sterling Industries Ltd (1987) 162 CLR 612. In Cocker v Tempest (1841) 7 M & W 502 at 503-4; 151 ER 864 at 865, Alderson B described the power in the following terms –
The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion; and where there are conflicting statements of facts, I agree that it is in general much better not to try the question between the parties on affidavit. The power must be used equitably; but if it be made out that the process of the Court is used against good faith, the Court ought to interfere to prevent it, for the purpose of administering justice.
His Lordship’s observations in this respect have been cited many times: see, for example, Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 638 (Gaudron J); von Risefer v Permanent Trustee Company [2005] 1 Qd R 681 at [14] (Keane JA) (von Risefer); Manolakis v Director of Public Prosecutions (2009) 108 SASR 451 at [15]; Velissaris v Dynami Pty Ltd [2013] VSCA 299; 306 ALR 256 at [116] (Whelan JA) and Thomas v University of Melbourne (No. 4) [2019] FCA 1798 at [36]-[37] (Wheelahan J).
In von Risefer at [24]-[25] Keane JA referred to the observations of French J in Hunter v Leahy (1999) 91 FCR 214 at 221, agreeing with his Honour’s observations that the High Court’s decision in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 should not be regarded as so constraining the inherent jurisdiction or the implied incidental power of the Federal Court that the Court would be prevented from restraining the institution of proceedings which, in effect, sought to re-litigate the substance of matters already determined in proceedings which had been disposed of by the Court. Keane JA regarded the Supreme Court of Queensland as having the power to protect the defendants in von Risefer against further attempts by the plaintiffs to re-litigate the same complaints in fresh proceedings, and that this power was an aspect of the inherent jurisdiction to which he had earlier referred, drawing on the explanation of Baron Alderson in Cocker v Tempest.
Consistently with these principles the inherent jurisdiction or the implied incidental power of this Court should be regarded as enabling it to restrain the institution of new proceedings where such proceedings may be said to constitute an attempt to re-litigate a dispute that has already been concluded.
The Commencement of the Trial
The trial of the proceeding was to commence before Johns J on 9 December 2019. However on that day her Honour was only able to deal with certain preliminary matters and make orders releasing subpoenaed documents, before recusing herself. The following day, 10 December 2019, the trial commenced before me, and ran for two days. I heard the parties’ openings, the evidence, and the parties later provided written closing submissions.
On 9 December 2019 Johns J reminded the father that she had earlier made an order pursuant to s 102NA of the Act, the effect of which was to prohibit him from cross-examining the mother. The father indicated that he had not made an application to Victoria Legal Aid for representation and that he did not intend to cross-examine the mother. The father accepted directly, in answer to a question from her Honour, that in the absence of cross-examination the evidence of the mother would be essentially unchallenged.[2]
[2] The terms of this exchange are recorded at Appendix A to these reasons.
It also became clear on the first day of the trial that there was an outstanding issue concerning an objection to the release of subpoenaed documents. On 18 April 2019 the ICL had issued a subpoena for access to the child’s medical treating records of her paediatrician and her psychologist. An objection was filed on behalf of the mother on 2 May 2019, on the basis of concerns that the records would disclose the mother and child’s current residential address to the father. However, for reasons which are unclear the objection was never dealt with, the result of which was that the documents, having been received by the Court on or around 3 May 2019, had not been released to the parties by the first day of trial. Johns J made an order by consent on the first day of the trial in the terms of a minute drafted by the ICL that, subject to the mother’s solicitors having the opportunity to delete references to the mother’s address, all parties would have the opportunity to inspect these documents. Counsel for the ICL indicated before me the following day that she had received one bundle of redacted documents at about 3.45 pm the previous day, which she reviewed before passing them on to the father that afternoon at about 4.15 pm. The other bundle she said she reviewed on the morning of 10 December 2019, before passing the redacted documents onto the father before the commencement of the hearing that morning at 10.00 am.
The allegations of family violence and the IVO obtained by the mother against the father are of relevance under s 60CC(3)(j) and (k) of the Act. As has been indicated I accept that the father subjected the mother to emotional and psychological abuse which resulted in the IVO being made, and that his behaviour satisfies the definition of family violence under s 4AB of the Act. The father’s actions including sexualised comments made in front of the child, online stalking of the mother, carrying out systems abuse by filing multiple court and administrative applications for the purpose of depleting the mother’s financial resources, and the numerous messages sent to the mother about such applications, particularly his SMS of 27 August 2017 and email of 29 August 2018, were designed to and did harass and threaten the mother. They caused her to feel intimidated and fearful. This behaviour also weighs heavily against the father’s application.
Insofar as s 60CC(3)(l) is concerned, there is a risk, perhaps a significant risk given the threats previously made by the father to sustain litigation in this case for as long as possible, that making orders for no contact with the father will lead to the institution of further proceedings between the parties. However, the weight of the evidence considered in the assessment of the other best interest factors above suggests that this risk is not sufficient to establish that such orders would not be in the child’s best interest. In any event, this risk will be significantly mitigated by making an order pursuant to s 64B(2)(g) of the Act circumscribing the father’s ability to commence further proceedings in relation to the child.
Having regard to all of the relevant matters required to be considered by s 60CC of the Act, the father’s application for the child to spend time and have other contact with him must be dismissed. The only appropriate order is that the child have no contact with the father. In all the circumstances the father should also be restrained from contacting the mother or the child by any means whatsoever, and from passing gifts or messages to the child via third parties. He should be prohibited from contacting or attending at the child’s home, school, or any place where she is involved in extracurricular activities or recreation.
The mother is, however, content to have the child’s school provide the child’s school reports to the father, and to provide him, via a third party, with a photograph of the child each year until she turns 18. The mother is also prepared to permit the father to send the child a letter or a card on four occasions each calendar year via a third party, on the basis that they can be opened by the mother and only provided to the child if the mother considers it appropriate to do so. In all the circumstances arrangements of this kind are not inappropriate, and there will be orders providing that this can occur.
I acknowledge that it is a significant step to make orders for no time and no communication, save for four letters a year, between the father and the child. I also accept, as submitted by the father, that it is rare for orders to be made in parenting proceedings under the Act which afford no time to one parent, particularly in the absence of physical violence, substance abuse, or mental health difficulties. However each case must be assessed on its merits and the appropriate orders to be made must always be informed by what is in the best interests of the child in the particular circumstances of the case.
Religious observance
As has been mentioned, in his application the father seeks an order restraining and prohibiting the mother from imposing any religious observance upon the child. In his case outline and during the trial he argued that it would be in the child’s best interests for her to have a secular education.[279] The matter is not addressed at all in the father’s final submissions. Whether or not this part of the father’s case has been abandoned, there is no basis for the making of such an order.
[279] Father’s outline of case, filed 6 December 2019
The Act makes clear that the religious upbringing and education of a child are two of the “major long-term issues” (s 4(1)) over which decisions are made in the exercise of parental responsibility (s 65DAC). As it is in the best interests of the child for the mother to have sole parental responsibility, it is for her to decide where the child attends school and whether she is raised in a particular religious tradition.
In any event, as the mother has submitted and as has been accepted, one religion is not to be preferred over another, and there is no preference towards either a religious or non-religious upbringing for a child.[280] Whilst it is generally the position that such decisions are left up to those exercising parental responsibility, it is open to the Court to examine the tenets and practices of a particular faith to determine the best interests of the child and make orders accordingly. [281] Any such consideration and the making of any such orders does not constitute a breach of s 116 of the Constitution.[282]
[280]Paisio and Paisio (1979) FLC 90-659; see also P & L [2006] FamCA 947
[281]Firth and Firth; Boyer and Boyer (Interveners) (1988) FLC 91-971, 77,025
[282]Firth and Firth; Boyer and Boyer (Interveners) (1988) FLC 91-971, 77,025
In any event, as the mother has submitted, there is no evidence to support the father’s contention that attending a secular school and moving the child from her current religious school, in which she is settled and performing well, would be in the child’s best interests.
Watch List and issue of passport
As has been indicated, the mother’s submissions in relation to these matters are to be accepted. The father has not sought final orders keeping the child’s name on the Airport Watch List, or any prohibition on her travelling overseas. He has led no evidence on the subject. There is no basis for the child’s name to remain on the Airport Watch List, and there will be an order that it be removed. Insofar as the mother seeks an order that the Minister for Foreign Affairs issue a passport for the child, an order in these terms would not be appropriate. The appropriate order is that the mother be authorised to do all acts and things and sign all documents as necessary to ensure that the child has a current Australian passport from time to time, as well as any necessary visa for travel, and the consent of the father shall not be required. The mother also seeks that she retain the child’s passport once it is issued. In light of the other orders that are to be made this will follow as a matter of course, and there is no need for the making of an order in these terms.
Order restraining father from making further applications under Part VII
As has also been indicated, notwithstanding the fact that the father has prosecuted these proceedings for a collateral purpose and that they constitute an abuse of process, I do not consider, for the reasons I have given, that s 102QB of the Act has been engaged. I am however satisfied that in all the circumstances it would be desirable, in the best interests of the child, to make orders pursuant to s 64B(2)(g) of the Act restraining the father from making any application under Part VII of the Act in relation to the child without first making an ex parte application seeking and obtaining the leave of a Judge of this Court. As the mother proposes, should he wish to make such an application the father will be required to identify the specific orders that he seeks, and file an affidavit setting out his reasons for seeking such orders, and any evidence in support of them. There will also be an order that, unless otherwise ordered, any such application made by the father not be served on the mother or any other person.
Other matters
The mother has also sought orders for the provision of the family report to the child’s current or future treating professionals, and that the father keep her informed of his current residential address and contact details via a third party. Orders in these terms are appropriate and will also be made.
In her Amended Response to Initiating Application and in her case outline the mother has sought her costs of the proceedings, said to be in excess of $70,000, on an indemnity basis. Although she has not addressed this matter in terms in her written closing submissions, her basis for seeking such an order is clear. The father has made no submissions on the subject of costs in his written closing submissions. In these circumstances there will be an order that the father file and serve written submissions within seven days on the question of costs, failing which the Court will consider the question of costs in the absence of submissions from the father. The mother may file and serve a response to any submissions by the father on the question of costs within a further seven days, should she wish to do so.
I certify that the preceding three hundred and seventeen (317) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 17 August 2020.
Associate:
Date: 17 August 2020
APPENDIX A
HER HONOUR: You are representing yourself today sir?
FATHER: That’s right
HER HONOUR: Alright, well I have made an order pursuant to s 102NA of the Family Law Act regarding cross examination by you of the mother and I’ve made an order that prohibits you from cross examining her. You were directed to make application to Victoria Legal Aid for representation. Did you make such application?
FATHER: Your honour I don’t intend to cross examine the respondent. Instead I’d like to cross examine her mother.
HER HONOUR: Pardon?
FATHER: Her mother, Ms D, certainly filed an affidavit in the matter. Instead of cross-examining the respondent, I’d like to cross examine her mother.
HER HONOUR: For what purpose?
FATHER: Behaviour
HER HONOUR: The problem you’ve got Mr Cardus, is that the evidence of mother will be unchallenged evidence – that’s the reality.
FATHER: That’s right your Honour.
HER HONOUR: That’s the decision you have made. So that’s the way you want to conduct your case?
FATHER: Yes your Honour
HER HONOUR: So unchallenged evidence means that everything that’s contained in the mother’s affidavit is accepted?
FATHER: Yes your Honour
HER HONOUR: Have you sought legal advice around these matters?
FATHER: Yes your Honour
HER HONOUR: Alright.
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