Castro & Paulson
[2024] FedCFamC2F 1630
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Castro & Paulson [2024] FedCFamC2F 1630
File number(s): BRC 8920 of 2023 Judgment of: JUDGE BERTONE Date of judgment: 11 December 2024 Catchwords: FAMILY LAW – Final Parenting Orders made in 2016 after defended hearing – Father seeks to change final orders where he has previously applied in 2018 and 2020 –Father was found guilty of contravention of orders in 2024 – Section 65DAAA applied - No significant change of circumstances found - Final Parenting Orders in best interests of child – where Mother seeks declaration that Father is vexatious litigant pursuant to section102Q – declaration made Legislation: Family Law Act 1975 (Cth), Part VII, Division 12 A, s60CA, s60CC, s65DAAA, s69ZN, s102Q, s102QB, s102QE, s102QG.
Federal Court of Australia Act 1976 (Cth), s4
Domestic and Family Violence Act 2012 (Qld) s51
Cases cited: Babic & Taccini [2024] FCWA 203;
Gambetto & Farrelli [2023] FedCFamC1F 465;
McEnearney & McEnearney (1980) FLC 90-866;
Miller & Harrington (2008) FamCAFC 150;
Monfort & Bade [2022] HCASL 112;
Moreton and Berry [2014] FamCAFC 208;
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398;
Pencious & Searle [2017] FamCAFC 210;
Potier v Attorney-General (2015) 89 NSWLR 284;
Rice and Asplund (1979) FLC 90-725;
Rilak & Tsocas [2020] FamCA 49; and
Whisprun Pty Ltd v Dixon [2003] HCA 48.
Division: Division 2 Family Law Number of paragraphs: 141 Date of last submissions: 10 September 2024 Date of hearing: 9 August 2024 Place: Brisbane Counsel for the Applicant: Mr R Gordon Solicitor for the Applicant: Beck Legal Group Counsel for the Respondent: Ms P Eviston Solicitor for the Respondent: Redhill Legal ORDERS
BRC 8920 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CASTRO
Applicant
AND: MS PAULSON
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS:
1.The Father’s Initiating Application filed 10 July 2023 is dismissed.
2.Pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the Father, MR CASTRO, is prohibited from instituting proceedings under the Act against or in relation to the Respondent, MS PAULSON, without first being granted leave to commence that proceeding pursuant to section 102QE of the Act.
3.In the event the Father seeks leave to commence proceedings pursuant to section 102QE of the Act he must not serve the Mother with his application unless specifically ordered to do so pursuant to section 102QE(4) of the Act.
4.With respect to any order for costs sought by the Mother:
(a)Notice must first be given to the Father as to the quantum of costs sought; and
(b)If agreement cannot be reached within 14 days after notice is given, then the Mother shall file and serve written submissions, not exceeding ten (10) pages, addressing the issue of costs within 28 days of giving notice; and
(c)The Father shall file and serve written submissions in reply, not exceeding ten (10) pages, within 14 days after service of the Mother’s submissions.
5.The question of costs shall then be determined in Chambers on the basis of the parties’ written submissions with Judgment being delivered as soon as practicable thereafter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BERTONE
The parties are parents of X born in 2014. X is now 10 years old.
The parties have been in dispute in respect of X’s care arrangements for the majority of his life. Their competing parenting Applications were heard and determined by Judge Purdon-Sully at a final hearing at which an Independent Children’s Lawyer had been appointed. Her Honour Judge Purdon-Sully made orders on a final basis on 14 October 2016 (the “Final Parenting Orders”).
The Father now applies for those Final Parenting Orders to be reconsidered. The Mother opposes his application.
POSITIONS OF THE PARTIES
The Father’s application is essentially:
(a)To discharge the Final Parenting Orders;
(b)For the parents to have joint decision making responsibility for X; and
(c)For X to live in an equal-time arrangement.
The Mother opposes the Father’s application to re-litigate the parenting proceedings and she seeks orders that:
(a)The Father’s application be dismissed;
(b)The Father be declared a vexatious litigant pursuant to section 102QB of the Family Law Act (the Act); and
(c)The Father pay her costs on an indemnity basis.
ISSUES FOR DETERMINATION
The issues for my determination are:
(a)Whether in view of section 65DAAA of the Act, there has been a significant change in circumstances since the Final Parenting Orders were made;
(b)Is it in X’s best interests for the Final Parenting Orders to be reconsidered; and
(c)Whether the Father ought to be prohibited from bringing any future application under the Act pursuant to s102QB of the Act; and
(d)Whether the Father ought to pay the Mother’s costs.
THE MATERIAL RELIED UPON BY THE PARTIES
I have read and considered the material relied upon by each party, which has included:
(1)Father’s Application for Final Orders filed 10 July 2023;
(2)Affidavit of the Father, Mr Castro filed 12 July 2024, including the annexures;
(3)Reply Affidavit of Father, Mr Castro filed 26 July 2024;
(4)Mother’s Response to Application for Final Orders filed 15 August 2023;
(5)Affidavit of the Mother, Ms Paulson filed 12 July 2024, including the annexures;
(6)Reply Affidavit of the Mother, Ms Paulson filed 26 July 2024, including the annexures;
(7)Final Parenting Orders and the Reasons for Judgment of her Honour, Judge Purdon-Sully dated 14 October 2016;
(8)Reasons for Judgment delivered by his Honour, Judge Lapthorn on 26 May 2021;
(9)Reasons for Judgment delivered by her Honour, Judge Dickson on 27 March 2024;
(10)Written Submissions on behalf of the Respondent Mother filed 27 August 2024; and
(11)Written Submissions on behalf of the Applicant Father filed 10 September 2024;
As the High Court has said, I am not required in these reasons to mention every fact or argument relied upon by the parties, nor am I required to address every submission made by the parties.[1]
[1] Whisprun Pty Ltd v Dixon [2003] HCA 48.
Where in the reasons that follow, I make statements of fact, these should be regarded as findings of fact.
BACKGROUND
These parents have been locked in litigation for some eight years. There have been multiple Court appearances with respect to X in both this Court and its predecessor, the Federal Circuit Court.
There have also been multiple Court appearances in the Magistrates’ Court of Queensland in respect of protection order proceedings between the parents.
At the time of the hearing, there were outstanding proceedings in the Magistrates Court in respect of the Police Application for a protection order for the Mother against the Father, which was scheduled to be heard in 2024.[2].
[2] Mother’s Written Submissions filed 27/08/2024 at paragraph 38.
The Final Parenting Orders were made after a contested final hearing in 2016 at which both parties were legally represented. There had also been an Independent Children’s Lawyer appointed.
The presiding Judge, her Honour Judge Purdon-Sully, had the benefit of hearing the parties under cross-examination, in addition to having had expert evidence from Family Consultant B, who prepared a Family Report, and also a psychiatric assessment undertaken by Dr A.
The Final Parenting Orders commenced when X was 2 years old, and provided for time to increase as he got older. The last increase in time was scheduled to occur in 2019, which is when X was due to start primary school. The operative orders now essentially provide the following:
(a)The Mother have sole parental responsibility for the child;
(b)The Mother is to take into account the Father’s views before making decisions;
(c)The parents shall individually be responsible for the day to day care and welfare of the child when the child is spending time with them;
(d)The child live with the Mother;
(e)From 23 July 2019, the child spend time with the Father:
(i)In week one, from after school Friday, (or 3.30pm Friday if not a school day) until 4.30pm Sunday; and
(ii)In week two, from after school Thursday (or 3.30pm Thursday if not a school day) until 7:00pm; and
(iii)Once the child starts primary school, in each of the Easter, June/July and September/October school holiday periods for four consecutive nights; and
(iv)In the Christmas school holidays for two periods of four consecutive nights.
(f)On special days the child spend time:
(i)From 2017, with the Father from 1pm Christmas Eve until 1pm Christmas Day in odd numbered years and with the Mother in even numbered years; and
(ii)From 2018, with the Father at Christmas from 1:00pm Christmas Eve until 1:00pm Christmas Day in even numbered years and with the Mother in odd numbered years;
(iii)From 2019, with the Mother from 1pm Good Friday until 1pm Easter Saturday in odd numbered years and with the Father in even numbered years;
(iv)From 2020, with the Father at Easter from 1:00pm Easter Saturday until 1:00pm Easter Sunday in even numbered years and with the Mother in odd numbered years;
(g)On Mother’s Day and Father’s Day, the child spend time:
(i)with the Father from 8.30am until 4.30pm on Father’s Day; and
(ii)with the Mother from 8.30am until 4.30pm on Mother’s Day.
(h)Child’s and Parent’s Birthday
(i)On the child’s birthdays, the child spend time with the Father from 4.30pm the day prior until 11am on the child’s birthday in even numbered years, and from 11am until 4.30pm on the child’s birthday in odd numbered years;
(ii)On the Father’s birthday, if the child is not already in his care, from 9am until 4pm if it is a non-school day or from after school until 7pm if it is a school day;
(iii)On the Mother’s birthday, if the child is not already in her care, from 9am until 4pm if it is a non-school day or from after school until 7pm if it is a school day;
(iv)That for holidays and special days, the scheduled time provided for in these Orders is to be suspended and resume at the conclusion of that period.
(i)Brisbane Exhibition Wednesday
(i)From 2018 and each even year thereafter, the child spend time with the Father from 2.30pm Ekka Wednesday until 8.30am Thursday; and
(ii)From 2019 and each odd year thereafter, the child spend time with the Mother from 2.30pm Ekka Wednesday until 8:30am Thursday.
(j)Changeover to occur at school or if cannot occur at school, then changeover is to take place at McDonald’s Suburb D;
(k)When the child turns 4 years of age, the Father is at liberty to telephone him between 6:00pm and 6:30pm each Thursday evening.
(l)Each Parent is restrained from:
(i)Relocating more than 50km from their current residence without consent of the other parent;
(ii)Change or use any other surname for the child apart from ‘Castro’;
(iii)Discussing these proceedings with the child including showing any document relating to these proceedings;
(iv)Passing information or messages through the child to the other parent; and
(v)Using physical force on the child when disciplining him.
(m)For a period of no less than 12 months from the date of these Orders, the Father will continue to attend with his current treating psychologist.
The Final Parenting Orders on 14 October 2016 contain Notation A which states:
“The Mother and Father agree to take steps to review these Orders at the commencement of term 4 in 2019 when the child is due to complete is first year of primary school (his preparatory year).”
On 30 August 2018, the Father filed an Application to reconsider the parenting orders (“the. first Application”). Subsequently, that Application was withdrawn on 15 March 2019 without a judicial determination.
On 2 June 2020, the Applicant Father filed another Application to reconsider the Final Parenting Orders, seeking orders that were consistent with the 2018 Application (“the second Application”).
The matter was heard by his Honour, Judge Lapthorn on the papers. His Honour did not hear cross-examination. Judge Lapthorn dismissed the Application, with Judgment delivered on 26 May 2021.
On 10 July 2023, the Father made another Application to reconsider the parenting proceedings (“the current Application”). This is the Application upon which I am required to adjudicate.
Ms Eviston, of Counsel, appeared on behalf of the Mother. The Mother asks me to dismiss the Father’s Application.
Mr Gordon, of Counsel, appeared on behalf of the Father. The Father submits that I ought not to dismiss the Father’s Application, as the Mother seeks, without first obtaining a Family Report to ascertain X’s views now that he is 10 years old.
The Father’s case being that the child’s wishes are a factor that needs to be considered pursuant to section 60CC of the Act in circumstances where they were not ascertained in the first tranche of the proceedings, given that X was then only 2. He urges me to order the preparation of a Family Report so that X’s views and wishes can be ascertained.
LEGAL PRINCIPLES
By the time the matter was before me, the Family Law Act had been amended to include section 65DAAA of the Act. The section legislated, in effect, a principle that emerged in family law jurisprudence, commonly known as the rule in Rice and Asplund [3].
[3] Rice and Asplund (1979) FLC 90-725.
The Full Court of the Family Court in Rice & Asplund[4] held:
[The Court] should not lightly entertain an application to reverse an earlier custody order. … the Court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising, or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. … These are not necessarily matters for a preliminary submission, but they are matters that the Judge should consider in his reasons for decision.[5]
[4] Ibid.
[5] (1979) FLC 572.
Mr Gordon submits that this case is analogous to that of Moreton and Berry [6] in that the Court did not deal with the Rice and Asplund point as a preliminary issue, but rather made an order for a Family Report to be obtained.
[6] [2014] FamCAFC 208.
Section 65DAAA of the Act provides:
Section 65DAAA Reconsideration of Final Parenting Orders:
(1)If a final parenting order is in force in relation to a child, a Court must not reconsider the final parenting order unless:
(a)The Court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)The Court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the Court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the Court may have regard to any matters that the Court considers relevant, including the following:
(a)The reasons for the final parenting order and the material on which it was based;
(b)Whether there is any material available that was not available to the Court that made the final parenting order;
(c)The likelihood that, if the final parenting order is reconsidered, the Court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way); and
(d)Any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the Court may reconsider a final parenting order with the agreement or consent of all the parties to that Order.
(4)The failure of a Court to comply with subsection (1) does not affect the validity of any Order made by the Court.
I refer to the recent decision by Justice O’Brien in Babic and Taccini [7] with respect to the application of section 65DAAA of the Act and I gratefully adopt his enunciation of the principles that continue to apply in these matters:[8]
[7] Babic and Taccini [2024] FCWA 203.
[8] Ibid at paragraphs 18 and 19.
[18]Absent appellate intervention the starting presumption on the commencement of new parenting proceedings must be that the primary orders were correct[9] - that is, that they were in the best interests of the children at the time they were made.
[9] See the discussion, albeit in the context of a stay pending appeal, in Cape & Cape (2013) FLC 93-549 at [21]-[22].
That presumption is capable of rebuttal by cogent evidence that a material factor was not disclosed at the primary hearing; failing that, it must follow that it cannot be in the best interests of the children to discharge or vary those orders unless there has been a relevant change in circumstances since they were made.
[19] In my view, notwithstanding that the authorities which established them predate the legislative amendment, the following principles remain intact:
(1)The rule as now codified applies in every case in which final parenting orders are sought to be discharged or varied subsequently. It recognises the benefits of finality of litigation, while also recognising "that considerations acutely relevant to a child's best interests can change, including, for example, by reference to the child's age and level of maturity".[10]
(2) The consideration of s 65DAAA can occur at any stage of the proceedings.[11]
(3)An order dismissing an application for parenting orders following the application of s 65DAAA is not itself a parenting order. In my view, neither is an order at a preliminary stage declining to dismiss the application, without more. Nevertheless, the consideration of s 65DAAA is a manifestation of the "best interests" principle.[12] The nature and extent of the court's consideration of the matters set out in s 60CC will depend on the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.[13]
(4)Where the consideration of s 65DAAA occurs at a preliminary stage, when the evidence is not tested, the applicant's evidence must be considered at its highest[14] but the matter is nevertheless determined on its merits, and not by reference to the principles applied to applications for summary dismissal.[15]
(5)That common law position is supplemented by the express provisions of s 65DAAA(2). That provision permits consideration of the reasons for the final parenting order and the material on which it was based, whether there is any material presently available that was not available to the Court which made the final parenting order, the likelihood that if the case proceeds to conclusion a new parenting order significantly affecting the operation of the existing order will be made, and any potential benefit or detriment to the child that might result from reconsidering the final order.
[10] Poisat & Poisat [2014] FamCAFC 128, [41].
[11] Miller & Harrington (2008) FLC 93-383.
[12] SPS and PLS (2008) FLC 93-363.
[13] See for example SCVG v KLD (2014) 51 Fam LR 340; Banks & Banks (2015) FLC 93-637.
[14] See Searson & Searson (2017) FLC 93-788.
[15] Dauntry & Wemple (2018) FLC 93-876.
Has there been a significant change in circumstances?
As I stated earlier in these Reasons, the Final Parenting Orders were made by her Honour Judge Purdon-Sully after a contested final hearing.
The Mother commenced those proceedings to seek an urgent recovery order in circumstances where the Father withheld X after a two-hour pre-arranged visit, as the parents had by then separated. X was still an infant and was still fully breastfed at that time.
The Father sent the Mother an email, part of which was cited in her Honour’s Reasons for Judgment, and part of which was cited in the Mother’s Affidavit, which said: [16]
“I am assuming full custody of [X] as I believe due to your mental and emotional state is note [sic] appropriate to be exposing [X] to…”
“As I have been supplementing [X] with formula, he will now begin to be full formula fed.”
[16] Reasons for Judgment – Judge Purdon-Sully at paragraph 12 and Mother’s Affidavit filed 12 July 2024 at paragraph 27.
X was returned to the Mother with the assistance of the Australian Federal Police. [17] The Father’s conduct was appalling. Not just because he forced the Court’s hand to order the Australian Federal Police to return an infant to his Mother late at night, but because of his complete lack of insight in retaining baby X from his Mother, and then unilaterally deciding X would be formula fed and no longer breastfed.
[17] Ibid at paragraph 14.
Such conduct speaks to the Father’s willingness to subjugate the needs of X to meet his own needs.
In deciding what orders were in X’s best interests, her Honour Judge Purdon-Sully said:
“The decision I have made is predicated on my finding that the probability of the father making significant changes to his views about the Mother is slight. That is, unless the Father is prepared to engage in the intensive and long-term therapeutic work recommended by [Family Consultant B] [sic] in his Report dated 19 October 2015, the probability of the Father making changes to either his interpersonal issues, or the possibility of there being any improvement in the parental relations, and the possibility of the Father changing his views about the Mother and adopting different strategies, is slight.” [18]
[18] Ibid at paragraph 53.
Her Honour went on to say:
“I accept that the Father has made the Mother’s life very difficult, in circumstances where she is [X’s] primary attachment figure. This was something the Father acknowledged in the witness box.” [19] And later “…The Father’s pressure on the Mother has not abated…” [20]
[19] Ibid at paragraph 58.
[20] Ibid at paragraph 63.
On 30 August 2018, less than two years after the Final Parenting Orders, the Father filed an Initiating Application seeking to have the Final Parenting Orders reconsidered (the “first Application”).
In that first Application, the Father sought sole parental responsibility and for X to live with the parents in an equal time arrangement.
The Mother opposed the first Application and engaged a private lawyer.
On 13 March 2019, seven months after filing the first Application, the Father offered to discontinue those proceedings provided the Mother did not seek costs against him. The Mother agreed. [21]
[21] Mother’s Affidavit filed 12 July 2024 at paragraphs 35 – 40.
The Final Parenting Orders remained in force.
On 2 June 2020, less than two years after making his first Application, the Father again filed an Initiating Application seeking to have the Final Parenting Orders reconsidered (the “second Application”).
The Mother’s evidence is that the orders sought by the Father were almost identical to the ones sought by him in his first Application. X by this stage was 7 years old.
The Mother again engaged a private lawyer and contested those proceedings.
In considering his decision, his Honour, Judge Lapthorn had the benefit of the Affidavit of Dr A, filed 1 June 2015 and also the Family Report by Family Consultant Family Consultant B, dated 19 October 2015, which was evidence that was also before her Honour, Judge Purdon-Sully at the first tranche of the proceedings.
The matter proceeded on the papers and no witnesses were cross-examined.
On 26 May 2021, his Honour Judge Lapthorn dismissed the Father’s second Application, having found that he was not satisfied there had been a significant change in circumstances.
I have had the benefit of reading his Honour’s Reasons for Judgment.
I note that at paragraph 24 of his Honour’s Reasons, his Honour noted that the Father’s asserted changes in circumstances were that:
(1)X was not yet 3 when the Final Parenting Orders were made;
(2)The Mother refused to allow the Father to volunteer at the child’s school;
(3)The Mother had not involved him in decisions regarding the child’s health;
(4)The Court would be satisfied the Mother is not promoting a relationship between the child and the Father; and
(5)The Mother had not taken any steps to review the orders as provided in the notation to the orders.
His Honour noted that the Father’s affidavit is a:
“litany of complaints about the Mother. He perceives her lack of interest in the child’s sporting activities and to actively resist his involvement at the school.”[22]
[22] Reasons for Judgment Judge Lapthorn at paragraph 29.
His Honour, Judge Lapthorn also said:
“These criticisms are a continuation of the Father’s presentation to the Trial Judge that led to the orders being made back in 2016. The Father continues to be critical of the Mother. The parties continue to have conflict. In other words there has been no change in circumstances.”[23]
[23] Ibid at paragraph 30.
His Honour Judge Lapthorn cited parts of the Family Report by Family Consultant B, and parts of the Dr A report, in his Reasons for Judgment [24]:
“The Trial Judge gave significant weight to the reports of [Family Consultant B] and [Dr A] when coming to her decision. In the Family Report, [Family Consultant B] opined:
“…this family consultant could not support [Mr Castro] spending extensive future time with [X] on a regular basis. Such has the potential to negatively impact upon [X] if he comes to experience diametrically opposed parenting styles, unyielding conflict between his parents…[Dr A] stated that [Mr Castro] has some vulnerability in respect of parenting due to a very high desire for a relationship with [X], which is demonstrated in the difficulties he has responding to [X’s] cues and signals…”
[24] Ibid at paragraphs 36.
Judge Lapthorn cited Dr A [25]–
“[the Father] will need to demonstrate boundaries and respect over time to facilitate their developing a cooperative parenting relationship that is conducive to their meeting [X’s] needs.”
[25] Ibid at paragraph 37.
His Honour, Judge Lapthorn, dismissed the Father’s second Application on the basis that he did not consider there had been a significant change in circumstances. His Honour was also concerned that to put the parents and child through further litigation would not be in X’s best interests, and that it would in fact add to the conflict.
His Honour also made an order for the Father to pay the Mother’s costs. The Mother’s evidence is [26] that her then Solicitors sent an email to the Father requesting payment of costs in the sum of $13,733.90. The Father has not paid this costs order.
[26] Mother’s Affidavit filed 12/07/2024 at paragraphs 46 – 49.
The Father’s reasons for bringing his current Application before me are set out in his Affidavit.[27] I note his reasons are substantially similar to the reasons and evidence he provided in the second Application dealt with by Judge Lapthorn:
(1)There has been a substantial change in circumstances since the Final Parenting Orders were made;
(2)The Mother is no longer considering the best interests of X which is evidenced in her failure to facilitate an ongoing meaningful relationship between X and his Father;
(3)X is eight years older than he was when the Final Parenting Orders were made and the orders are no longer appropriate to support X’s developmental growth and extraneous circumstances;
(4)The Mother is denying additional time (beyond the time in the Final Parenting Orders) which the Father says “has been devastating to me and [X] has expressed to me that he is extremely upset with the amount of time that we have been forced to spend apart”[28];and
(5)The Father has made additional requests for time at X’s request, with X saying to him words to the effect of [29]“Papa I don’t want to go to mama I want to stay here with you.” And “Papa this isn’t fair. I want to spend time with you” and “mama won’t let me spend more time with you.”
[27] Father’s Affidavit filed 12/07/2024 at paragraphs 7 onwards.
[28] Ibid at paragraph 30.
[29] Ibid at paragraph 31.
There are some emails annexed to the Father’s trial Affidavit. The emails between the parents contain the Father’s multiple requests for extra-time with X, in addition to seeking information that the Father complains the Mother does not provide.
The Father accuses the Mother of not listening, of being angry and resentful. He demands responses in very short time frames. He demands to know the Mother’s reasoning if she does not agree with his proposals. I am not persuaded that the Father’s complaints are valid.
The Mother’s evidence is that between 2016 and 2023 she has received a barrage of emails from the Father, which include personal criticisms, unfounded accusations and aggressive language. She has excerpted some of them in her Affidavit. [30]
[30] Mother’s Affidavit filed 12 July 2024 at paragraphs 176 – 177.
The Father’s Affidavit is replete with criticisms of the Mother. The Father criticises her for not engaging X in extra-curricular activities. The evidence before me shows this is untrue – X is involved in a number of extra-curricular activities.[31]
[31] Transcript of Proceedings page 107 lines 31 – 37.
The Father criticises the Mother for using outside school hours care instead of allowing him to take X. I have no cogent evidence to persuade me that outside school hours care is inappropriate.
I do not accept the Fathers criticisms that the Mother does not allow X to spend time with his friends outside of school. I do not cogent evidence of this.
The Father criticises the Mother for failing to agree to change times when he requests, or indeed to increase the time X spends with him. The Mother does not have to agree with him. Therefore, I do not accept the Father’s criticism are valid.
The Father criticises the Mother for not making any attempt to take his views into account when making long-term decisions for X. He criticises medical decisions she has made for X. The evidence of the communications between the parents shows that the Mother does consider the Father’s views.
I find that the Father’s complaint in this regard stems from whether or not the Mother agrees with his views. If she does not agree with him and comes to a different decision, for example, regarding X’s school[32] or in respect of vaccination, then the Father claims she has disregarded his opinion.
[32] Ibid page 59 lines 42 – 47 page 60 lines 1 – 18.
The Mother has sole decision-making authority. That means she is able to make the final decision.
The Father claims the Mother is disregarding X’s emotional well-being and is limiting his ability to support X when he needs him. I do not accept this is the case.
He criticises her for not supporting X with his homework. The evidence before me showed the opposite in fact – that it is the Father who does not support X’s homework because he has a “no homework” policy on the weekends when X is with him.[33]
[33] Transcript of Proceedings page 62 lines 11 – 29.
The Father says he is extremely concerned about the impact the Mother’s relationship with her new partner, Mr E, has on X.
The Father claims that the Mother frequently leaves X in the care of Mr E, and that she is allowing Mr E to make parental decisions for X. He says the Mother does not act protectively of X when her partners exhibit unsafe behaviour around X.
How the Father knows all of this is not stated in his affidavit. Given the poor communication between these parents, it seems obvious that the Father’s information about the Mother, and the goings on in her home, can only come from X.
He claims that the Mother does not allow X to call the Father when he wants to, and therefore X will not be able to contact him (the Father) when he is worried.
The Father claims that he was so worried about X’s welfare in the Mother’s care that he gave the child a smartwatch which allows him to call or message the Father if he needs to. Apparently, X told his Father that he was worried that the Mother would confiscate the smartwatch so he (X) put the watch inside his teddy bear for safekeeping.
Of course, the Father did not discuss any of this with the Mother, and so she was unaware that the child had been given the smartwatch until she found it inside the teddy bear.
The Mother has deposed to the history of the protection order proceedings between the parents since 2014. I accept the Mother’s evidence that she was extremely distressed when she found this device, which she thought had the capability of surveillance and tracking.
The Father denies he gave the child the smartwatch as a means to track the Mother. The Father claims he wanted the ability to communicate with X whenever he (the Father) chose, rather than abiding by the telephone contact specified in the Final Parenting Orders at Order 30.
I find it is likely that the Father told X not to tell his Mother about the smartwatch. Noting that the Father had already commenced these current proceedings when he gave X the smartwatch, I find that it would have given the Father the opportunity to gather evidence to support his current Application.
The Father was subsequently issued with a Police Protection Notice in 2024 and the Mother then sought, and was granted, a Temporary Protection Order against him.
It is clear to me that the Father has never accepted the time arrangement under the Final Parenting Orders. This is demonstrated by his three attempts to have those orders reconsidered and replaced with his desired equal time arrangement.
The Father’s repudiation of the Final Parenting Orders, in addition to his failure to comply with other orders made by this Court, is amply demonstrated by:
(1)his failure to pay the costs order made by Judge Lapthorn even though he received an inheritance;
(2)the findings of Judge Dickson on 27 March 2024 that the Father had contravened the Final Parenting Orders without reasonable excuse on eight occasions;
(3)his failure to pay the costs order made by Judge Dickson, in the sum of $8,000 which was required to be paid within 60 days of the orders;
(4)his paid engagement of Solicitors and Counsel to pursue this current application despite having two outstanding costs orders; and
(5)his failure to return X to his Mother on time in accordance with the Final Parenting Orders, saying that he gets there “maybe 10 or 15 minutes after.” [34] The Mother’s evidence is that the Father has routinely arrived 30 to 40 minutes late to handovers without communicating with her[35]. I suspect the Mother’s estimate of the Father’s lateness is more accurate.
[34] Transcript of Proceedings page 54 lines 5 – 22.
[35] Mother’s Affidavit filed 12 July 2024 at paragraph 60.
The parental conflict has persisted since X was a baby. The Father’s views of the Mother have not changed. The Father’s criticisms of the Mother have continued unabated. The parental conflict will only increase with continued litigation.
I am not satisfied there has been a significant change in circumstance.
Is it in X’s best interests for the Final Parenting Orders to be reconsidered?
X is now 10. Counsel for the Father submits that the appropriate way to ascertain X’s views and wishes is by the preparation of a Family Report.
As I said to Counsel, it is the price of that Family Report that I need to look at. I told the parties at the hearing before me, that the Family Report is but one piece of evidence that must be considered in determining what orders are in X’s best interests.
In cross-examination before me, the Father was asked questions by Counsel for the Mother about the calendar X made which shows the days he spends with each parent. He was also asked about the discussions the Father has with X about his wishes.
The Father says that he is “giving a voice to [X]”, and he is “doing this out of the love for my son, who loves his Mother and me, and he wants to be with me, and he keeps voicing that to both me and his Mother, and only one side is actually giving him an ear to listen to.” [36]
[36] Transcript of Proceedings at page 58 lines 41 – 42.
The Mother accepted during her cross-examination that X has asked her to spend more time with the Father, but she says that these conversations coincide with when X returns from spending time with his Father.
I asked the Mother about an incident partly described in her Affidavit [37] about a time in 2022 that prompted her to contact the school guidance counsellor to arrange counselling for X. He had come to her crying saying “My life is stressful. I just want you two to have a conversation. Things have got really stressful for me and I have a really tough life. I wish you would agree.”
[37] Mother’s Affidavit filed 12 July 2024 at paragraph 169.
The Mother told me in cross-examination that X had come back from spending time with his Father and was asking her why she would not let him spend more time with his Father, and she said that he used the phrase “week on, week off”.
The Mother said she told X that they have to follow the document, and the child said: “Papa says there is no document” and “Papa says that changes can be made to the time I spend with you.” She said he was getting very distressed.[38]
[38] Transcript supra at page 108 lines .
The Mother said that the Father keeps telling X that it is her fault that he does not get more time with the Father and so that is why she showed the child the front page of the Final Parenting Orders which she had with her.
In explaining why she decided to show X the front page of the Final Parenting Orders, the Mother said:[39]
“I was in a really difficult situation. I don’t know what to do, your Honour. When I’m dealing with the level of conflict that I have to deal with on an ongoing basis, I can tell you how distressing it is for me, and do you know the thing that bothers me the most is that this little boy is involved, and when we were talking today about the possibility of him being in family Court, I have tried to shield him as much as possible. I can’t bear the thought of him being exposed to this environment, because it is incredibly stressful. I don’t want him to know.”
[39] Ibid at page 110 lines 17 – 24.
I am critical of the Mother’s conduct in showing X the front page of the Final Parenting Orders. This action was not child-focussed.
I find that both parents have impermissibly involved X in the parenting dispute and have exposed him to their conflict over many years.
I accept that X loves both of his parents. I also accept that it is likely he is telling his parents that he may wish to spend more time with the Father. But X’s views are not determinative of what parenting arrangements are in his best interests.
I am mandated by section 60CC of the Act to consider what arrangements would promote X’s safety, including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm. Harm includes emotional or psychological harm.
I find that if I allow the proceedings to continue, even just to the next stage of obtaining a Family Report, the price will be X’s emotional and psychological well-being. I am very concerned that ordering a Family Report may present the Father with the opportunity to try to influence X’s views.
I find that allowing the Father’s application will expose X to parental conflict and the Father’s unyielding criticisms of the Mother in the hopes of extracting changes to the current parenting regime.
X will continue to be caught in the middle and he will have no peace.
I find that X will likely suffer emotional or psychological harm if the litigation about his care arrangements is reconsidered.
I also have to consider the impact on the Mother with respect to the unyielding attitude towards her by the Father and his communications with her that are abusive and denigrating.
The Mother has had to again get a Temporary Protection Order against the Father. There have been previous protection orders and protection order proceedings between these parents.
I have no doubt the Mother feels harassed by the Father.
This harassment is further exemplified by the situation with the hidden smartwatch. The Father did not tell the Mother about the smartwatch and he should have. I accept her evidence that she suffered extreme distress when she found the hidden watch.
The Father denies that he intended to use the smartwatch he gave to X as a way to track the Mother or keep her under surveillance. However, the Mother thinks he did.
The Mother tells me she is at breaking point. As X’s primary carer, I must take into account the negative impact further litigation will have on her mental and emotional well-being as that directly affects her capacity to parent.
The Mother’s Affidavit annexes a letter from her Psychologist, Ms F.[40] I note that given the nature of the proceedings before me, Ms F was not cross-examined. However, I am able to accept the evidence untested to this extent:
(1)The Mother has seen her psychologist on a number of occasions since 2023;
(2)The Mother has been assessed as at 2024 as experiencing high levels of distress and symptoms of trauma as demonstrated in results of the psychological assessment administered that date; and
(3)Ms F opines that the Mother is at risk of ongoing harm to her mental health if she is required to engage in further court proceedings.
[40] Mother’s Affidavit filed 12 July 2024 at Annexure SG-22.
In evidence before me the Mother said:[41]
“You’ve got to remember I’m under extreme stress being in a circumstance with this man. I can’t tell you how bad the stress is and I have been dealing with it since I was pregnant. [Judge] Purdon-Sully acknowledged it, and she said at the time that I had resilience. I do, but I can tell you what, I’m being pushed to my limit absolute limit, and I shouldn’t have to live like this, and it’s not about me, I get that, but I’m the main carer for this little boy, and putting me through hell all the time, and to the point that I’m nearly breaking, and that I now have to escalate to get more specialised help with trauma because I’m still experiencing really bad PTSD from this system, from [Mr Castro]. I get it’s not about just me, but you’ve got to be mindful of that. You know, it’s not good to do it to the Mother of a little boy, if you know what I mean.”
[41] Transcript of Proceedings at page 112 lines 8 – 18.
I have little doubt that the Father will never accept the parenting arrangements set out in the Final Parenting Orders. He will continue to be unsatisfied. He will continue to hold the negative views he holds of the Mother, and unfortunately, he does not seem willing or able to shield X from those negative views or indeed the parental conflict.
I am mindful of the wise words of Justice Nygh in McEnearney and McEnearney[42]:
“The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.”
[42] (1980) FLC 90-866.
I am not satisfied that if the proceedings were to continue, that there would be a change to X’s care arrangements to an equal care arrangement as sought by the Father.
I am fortified in this view by the opinion proffered by Family Consultant B in his Family Report prepared for the first tranche of the proceedings that “…this family consultant could not support [Mr Castro] spending extensive future time with [X] on a regular basis. Such has the potential to negatively impact upon [X] if he comes to experience diametrically opposed parenting styles, unyielding conflict between his parents…”
Consistent with section 65DAAA(2)(d) of the Act, I consider that there will be a significant detriment to X for the Final Parenting Orders to be reconsidered.
I find that it is in X’s best interests for the Father’s Application to be dismissed.
Whether the Father ought to be prohibited from bringing any future application under the Act pursuant to s102QB of the Act
The Mother seeks an order pursuant to section 102QB(2) of the Act to prohibit the Father from instituting any further proceedings under the Act.
The making of a vexatious proceedings order is defined in section 102QB:
Making vexatious proceedings orders
(1)This section applies if a court exercising jurisdiction under this Act is satisfied:
(a)A person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)A person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(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 or 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:
(a)The Attorney-General of the Commonwealth or of a State of 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.
(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.
It is useful to refer to general principles that have emerged from considerations of the statutory framework analogous to section 102QB of the Act in other jurisdictions.
In Pencious & Searle[43], the Full Court also cited with approval the general principles that apply to Applications for vexatious proceedings Orders as discussed by Perram J in Official Trustee in Bankruptcy v Gargan[44]:
[43] [2017] FamCAFC 210.
[44] [2009] FCA 398 “Gargan” (No 2).
…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.
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.
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.
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.
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.
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.
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.
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.
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 section 4 of the Federal Court of Australia Act 1976 (Cth).
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.
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.
In Monfort & Bade[45]Justice Howard explored the principles of a vexatious proceedings order:
[101] I am well aware that some of the authorities cited reference different legislation and different wording of rules relating to vexatious proceedings orders. But the fundamental principles remain the same. Importantly, the Full Court of the Family Court in Pencious & Searle was considering that appeal in the context of the current wording of the legislation in the Act – when it (the Full Court) cited the principles from Gargan with approval.
[126] A review of the principles outlined in the decision of Gargan makes it clear that when a Court is considering whether or not to make a vexatious proceedings order – that the notion of a proceeding is said to be a broad notion. Not only does the term “proceeding” include the substantive proceedings – but also collateral applications within a proceeding and it extends to applications outside the proceedings themselves. It embraces appeals. The conduct of a party during the course of the litigation is also a matter to be considered. In this regard I note s 102QB (6)(c) of the Act.
[45] [2022] HCASL 112.
In the decision of Gambetto & Farrelli[46] by Altobelli J, referred to the New South Wales decision of Potier v Attorney-General[47]. The Honourable Altobelli J stated:-
[92] The assessment of whether vexatious proceedings have been frequently instituted or conducted is not determined solely, or even necessarily, by the number of proceedings. As the Court of Appeal, Supreme Court of NSW in Potier v Attorney-General (2015) 89 NSWLR 284 concluded at [114] and [116]: “…“frequently” is a relatively low threshold” and “…both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency”.”
[116] & [118], Leeming JA confirmed that the assessment of whether vexatious proceedings have been instituted or conducted “frequently” is not necessarily determined by the quantity of proceedings, but is rather a “relatively low threshold” informed by “both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself.” The Full Court agreed with these propositions in Pencious & Searle [2017] FamCAFC 210 (“Pencious & Searle”) at [74].
[46] [2023] FedCFamC1F 465.
[47] (2015) 89 NSWLR 284.
These principles were also approved by the Honourable Gill J in Rilak & Tsocas. [48]
[48] [2020] FamCA 49 at [29].
Before making a vexatious proceedings order, I am required by section 102QB(4) of the Act to give the Father the opportunity to be heard. I am satisfied the Father was provided with such an opportunity when I made an order for him to file written submissions which he did on 10 September 2024.
I note the Father opposes the order sought by the Mother.
When considering whether to make a vexatious proceedings order, I must be satisfied as to the threshold issue that a party has frequently instituted or conducted vexatious proceedings or has acted in concert with another person who has done so.
The Father has filed multiple applications in this matter in an attempt to re-litigate the Final Parenting Orders, being:
(1)On 30 August 2018, the Father filed the First Application to re-open the parenting proceedings. After the Mother engaged lawyers and responded opposing that application, the Father withdrew his Application on 15 March 2019;
(2)On 2 June 2020, the Father filed his Second Application to re-open the parenting proceedings. His Honour, Judge Lapthorn dismissed the Application on 26 May 2021 and made a costs order against the Father that remains outstanding; and
(3)On 10 July 2023, the Father made the current Application to re-open the parenting matter. For the reasons I have given, I have dismissed the Father’s current application.
In accordance with section 102QB(6)(a) of the Act, I may have regard to proceedings instituted, or attempted to be instituted, or conducted in the Magistrates Court of Queensland.
I note that in the Magistrates Court, the Father has applied for a protection order against the Mother as the Respondent on two occasions:[49]
(1)In 2014, the Father filed an application naming the Mother as the Respondent and the Father as the Aggrieved. In 2016, the Father’s application was dismissed at the first mention; and
(2)In 2015, the Father again filed an application naming the Mother as the Respondent and the Father as the Aggrieved. That application went to a final hearing and no order was made against the Mother.
[49] Mother’s Affidavit filed 12 July 2024 at paragraph 64
The Father has applied for twice, and has failed twice, to obtain a protection order against the Mother.
I am satisfied that the judicial officer hearing those two applications in the Magistrates Court dismissed them as they each had no merit. I take these failed applications into account.
In accordance with section 102QB(6)(c) of the Act, I may also have regard to the Father’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;
(1)The Father has repeatedly failed to comply with the Final Parenting Orders by withholding X;
(2)The Mother filed a Contravention Application against the Father on 28 April 2023 pressing eight charges. The Father claimed he was supporting X’s need to be with him, claiming reasonable excuse, and thus he opposed the Mother’s application;
(3)The Matter went to a final hearing before her Honour Judge Dickson where her Honour found the Father did not have a reasonable excuse for contravening the orders. Her Honour imposed a 12 month bond and a costs order in the sum of $8,000;
(4)The Father has failed to comply with two costs orders made against him – one by Judge Lapthorn and one by Judge Dickson; and
(5)Despite entering into a 12 month bond, promising to abide by the Final Parenting Orders, the Father is routinely late bringing back X to his Mother in accordance with the Final Parenting Orders;
(6)In 2014, the Mother applied for a protection order naming the Father as the Respondent and herself as the Aggrieved. The Father opposed the making of that protection order, and the matter went to a contested hearing in 2015. The Mother was granted the final protection order against the Father;
(7)In 2024, the Queensland Police Service issued the Father with a Police Protection Notice naming the Father as the Respondent and the Mother as the Aggrieved;
(8)The following month in 2024, at the mention at the Magistrates Court the Father opposed the making of any temporary protection order. Notwithstanding his opposition, the Court imposed a temporary protection order against the Father;
(9)The Father opposes the imposition of a final protection order and the matter was due to go to trial in the Magistrates Court in late 2024. The Father could, if he wanted to, choose to consent to the protection order being made final, without making any admissions, pursuant to section 51 of the Domestic and Family Violence Protection Act (Qld) 2012;
I am satisfied that the Father has on three occasions commenced parenting proceedings premised on the same complaints and criticisms about the Mother, not proffering any cogent evidence to support his contention of a significant change in circumstances.
I am satisfied that the proceedings commenced by the Father in this Court in 2018, 2020 and 2023, in addition to his two failed applications for protection orders against the Mother in the Magistrates, were instituted and conducted by him in a way designed to harass or annoy and also to cause detriment to the Mother.
I take into account the Father’s complete failure to pay the two outstanding costs orders. I find this conduct to be particularly egregious in circumstances where he received an inheritance and where he paid for Solicitors and Counsel to represent him in these current proceedings.
I am therefore satisfied that the Father has both instituted and conducted vexatious proceedings frequently.[50] As Perram J stated in Gargan[51]
“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.”
[50] Note [119] of the decision of Potier v Attorney-General.
[51] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 [9].
The Father has displayed no insight into his previous litigious history. There is a significant risk to the Mother and child, this Court (and hence the public) that in the absence of the making of a vexatious proceedings order the Father will almost certainly commence further vexatious proceedings in the future.
The Father’s conduct over many years has significantly increased the stress on the Mother, both emotional and financial, and I find that this stress has had a negative impact on X.
I am satisfied that it is necessary to make an order pursuant to section 102QB(2)(b) of the Act. The order serves a protective purpose. The Father will be unable to recommence proceedings under this Act without first obtaining leave pursuant to section 102QE of the Act.
The Mother, and by extension X, will be shielded from any future Applications to be made by the Father unless such leave is granted.
I will make an order that the Father must not serve the Mother with a copy of any Application or Affidavit he makes unless an order is made under section 102QG(1)(a) of the Act.
Only if that order is made will the Mother be served with the Father’s future Application.
Costs
The Mother sought leave to be heard in respect of the issue of costs and I have set out a timeline for the filing of written submissions, after which I will make a decision as to costs.
I make orders as set out at the beginning of these Reasons.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bertone. Associate:
Dated: 11 December 2024
0
10
3