Darley & Darley (No 4)
[2023] FedCFamC1F 162
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Darley & Darley (No 4) [2023] FedCFamC1F 162
File number: BRC 2317 of 2013 Judgment of: CAMPTON J Date of judgment: 17 March 2023 Catchwords: FAMILY LAW – REVIEW – Mother seeks to review the exercise of delegated power by a senior judicial registrar for the refusal to make a recovery order in respect of one of the parties’ children – Where final parenting orders were made in 2018 for the children to live with the mother – Vexatious proceedings order against the mother in 2019 –Where the children have since transitioned to live with the father – Where the mother alleges the father has abducted the children, and the father alleges the children have self-placed in his care – Children aged 13 and 16 – Where notwithstanding the vexatious proceeding order, the mother has continued in an almost unrestricted manner to file numerous applications and affidavits in the proceedings – Application for Review dismissed. Legislation: Family Law Act 1975 (Cth) Div 8 of Pt VII, ss 67V, 60CC, 70NBA, 102QB, 102QD, 102QE
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 43, 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 7.1.3, rr 5.08, 14.07
Cases cited: Darley & Darley (No 2) [2022] FedCFamC1F 906
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Division: Division 1 First Instance Number of paragraphs: 75 Date of hearing: 17 March 2023 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
BRC 2317 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DARLEY
Applicant
AND: MR DARLEY
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
17 MARCH 2023
THE COURT ORDERS THAT:
1.The mother’s Application for Review filed 18 November 2022 be dismissed, and insofar as is necessary, her Application in a Proceeding filed 4 November 2022 be dismissed.
2.The purported filing of the Amended Application for Review on 11 December 2022 be voided, and in so far as if necessary, the Amended Application for Review be dismissed.
3.The Amended Application in a Proceeding filed at 5.57 pm on 11 December 2022 be dismissed.
4.The Amended Application in a Proceeding filed at 6.34 pm on 11 December 2022 be dismissed.
AND IT BE NOTED THAT:
A.These orders determine all outstanding extant applications and responses in these proceedings number BRC 2317 of 2013 in the Federal Circuit and Family Court of Australia (Division 1) save and except those either a part heard, listed before or reserved before Hogan J on 14 September 2022.
B.A copy of these reasons for judgment be provided to the case management judge in the Brisbane Registry and to the National Assessment Team.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Darley & Darley (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
Ms Darley (“the mother”) and Mr Darley (“the father”) married in early 2004 and separated in September 2012. They are the parents of two children:
(a)X, born 2006, currently aged 16 years; and
(b)Y, born 2009, currently aged 13 years.
The parenting of the children is regulated by way of final orders made by Hogan J on 12 December 2018 that provide:
2.The children, [X], born […] 2006, and [Y], born […] 2009, live with the mother.
3.The father and mother have equal shared parental responsibility for the major long term issues of the children including:
(a)the children’s education (both current and future); and
(b)the children’s religious and cultural upbringing; and
(c)the children’s health; and
(d)the children’s names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with, or live with, either parent.
…
6.The children spend time with the father at all times as may be agreed by the parents in writing but, failing agreement, as follows:
(a)commencing Friday 14 December 2018: each alternate weekend, from 5.00 pm on Friday to 4.00 pm on Sunday; and
(b)during the school holiday period….
The parties have been litigating as to the parenting of the children since 27 March 2013, a period now of 10 years.
On 23 August 2019 Carew J made the following order:
1.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the applicant mother be prohibited from instituting proceedings against [Mr Darley] or the independent children’s lawyer, under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.
During the course of the review hearing, the mother advised that she had sought to appeal from order made by Carew J pursuant to of the Family Law Act 1975 (Cth) (“the Act”), and that her appeal was dismissed by the Full Court of the Family Court of Australia (as it was then known).
On 14 September 2022 the following applications were listed before Hogan J:
(a)Application–Contravention filed by the father on 23 May 2022. The hearing of this application commenced on 11 July 2022 was adjourned part-heard to 14 September 2022. It remains part heard to a date to be allocated to complete the hearing. As is self‑evident, s 70NBA of the Act provides that the court may vary the primary parenting order whether or not a finding is made as to contravention of the primary parenting order. The section does not limit the circumstances in which a Court having jurisdiction under the Act may vary a primary order (s 70NBA(3)).
(b)Application in a Proceeding purportedly filed by the mother on 5 July 2022, seeking:
·Leave to institute proceedings under s 102QE of the Act;
·Leave to file an Application–Contravention;
·A discharge of the s 102QB(2) order made against her on 23 August 2019;
·That a s 102QB(2) order to be made against the father;
·A recovery order as to Y and X to remain in force until 2028; and
·A discharge of the existing substantive parenting orders as to both children, to be replaced by a new set of parenting orders including for the mother to be permitted to relocate with the children and for the children to have no time or communication with the father.
This application was also adjourned to a date yet to be fixed;
(c)Application in a Proceeding purportedly filed by the mother on 9 September 2022, seeking:
·Hogan J to be recused;
·Leave to issue a subpoena to Westpac Banking Corporation;
·Subpoena material contained in proceedings no. … to be marked as exhibits in the proceedings at trial; and
·The mother’s Contravention–Application for which she sought leave to file as part of her Application in a Proceeding to be listed for final determination.
Judgment as to the mother’s application for disqualification or recusal of Hogan J was reserved. The balance of the Application in a Proceeding was adjourned to a date to be fixed.
It is uncontroversial that as at today:
(a)X has lived with the father since late 2021; and
(b)Y has been living with her sister and father since late 2022.
On 4 November 2022 the mother filed an Application in a Proceeding seeking 24 discrete parenting and other orders. On an ex parte basis Hartnett J ordered on 15 November 2022:
1.The [mother] serve her Application in a Proceeding filed 4 November 2022, her affidavits filed 6 November 2022 and 14 November 2022 and a copy of this Order upon the [father] by 5.00pm on 16 November 2022.
2.Pursuant to [s 102QE of the Act] there is leave for the [mother] to institute a proceeding being her Application in a Proceeding filed 4 November 2022 on the condition that only her application for a recovery order in respect of [Y], is heard and determined.
The reasons delivered by Hartnett J, Darley & Darley (No 2) [2022] FedCFamC1F 906, record:
8I am satisfied in the circumstances of this matter that the mother should be granted leave pursuant to s 102QE of the Act to institute proceedings on the condition that only her Application in a Proceeding filed 4 November 2022 in respect of the recovery orders as sought by her is heard and determined by the Court. This is so because it is clear there is a parenting order in her favour together with a history, until very recently, of the child living with her. There is also, on the mother’s evidence and submissions, a situation where the child has not seen her father in accordance with the orders made on 18 December 2018 since March 2022. Both the mother and father acknowledge that the child is now in the care of the father. Why that is so, and/or how that has come to pass, is a matter about which I can make no finding. But certainly, the mother cannot be shut out from seeking orders for the return of the child in these circumstances.
9The mother sought service upon the father, in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), of her Application in a Proceeding and affidavits, which she sought to rely upon, be dispensed with. That is not a step I propose to make. The father must be given an opportunity to be heard by the Court and be put on notice of the proceeding in accordance with the Act (s 102QG) and the Rules. I note further the history of this matter, is lengthy, involves parenting orders, and has as part of its history a vexatious litigant order as against the applicant. I determined it was essential to afford procedural fairness to the father by the provision of service upon him of all material relied upon by the mother.
10The mother also sought parenting orders in respect of the parties’ daughter, [X] born […] 2006 (“[X]”), who is now 16 years of age. I note that there is a Child Impact Report (“Report”) recently prepared by a Court Child Expert dated 7 September 2022 on the Court file. That Report was ordered by Her Honour, Hogan J, on 5 August 2022, in respect of a Contravention Application filed by the father on 23 May 2022 and an Application in a Proceeding filed by the mother on 5 July 2022. Those applications were heard by Her Honour on 14 September 2022 and judgment remains reserved. The views of [X] are no doubt sought, at least, if not expressed, in the Report of the Court Child Expert. Leave to institute proceedings for further parenting orders in respect of [X] is not an appropriate exercise of my discretion in circumstances where there is a reserved judgment on an Application in a Proceeding filed by the mother in respect of both [X] and the child. Further, it does not appear on the evidence that any attempt has been made by the parties at dispute resolution where such process is, in particular, informed by [X’s] views as they may appear in the Court Child Expert’s Report and otherwise canvasses all relevant matters.
11Additional to all of the above, any application for parenting orders by the applicant needs to be carefully constructed with a single affidavit of the applicant in support. What the applicant puts before the Court at the present time does not meet that criteria. Rather, the applicant seeks to transverse her various grievances as set out in numerous affidavits that go back years, and place before the Court many matters which are no longer of relevance and/or where never of relevance. The material could not be filed in its current form, save as to that part which relates to her seeking of a recovery order.
12The Application in a Proceeding for orders in respect of the child is distinguished from that in respect of [X]. There is a real question as to the basis of the movement of the child from the mother’s care [in late] 2022. Was it in effect a removal orchestrated by the father, and in respect of which a recovery order should be issued? Or was it a deliberate action of the child, without input and/or manipulation from or by the father, and if the latter, for what reason?
13An examination of what occurred in late 2022 as put before the Court by each of the parties is required.
The determination made by Hartnett J if not explicitly, then implicitly [at 11], dismissed the balance of the 23 prayers for which leave to institute was sought by the mother in the Application in a Proceeding filed 4 November 2022. The sole prayer for relief for which the mother had achieved the indulgence of leave to prosecute was for a recovery order to issue in respect of the child Y. The broad subject matters of the leave to institute dismissed by Hartnett J were:
(a)The recusal of Carew, Hogan and Bauman JJ from the proceedings;
(b)The discharge of the s 102QB(2) order made against the mother on 23 August 2019;
(c)The imposition of s 102QB(2) order against the father; and
(d)Further final parenting orders in relation to the children.
The relief to which leave was sought to bring repeated in substantial part the subject matters of the applications listed before Hogan J on 14 September 2022 and currently awaiting determination.
On 17 November 2022 the mother’s Application in a Proceeding for a recovery order in respect of Y filed pursuant to the leave granted by Hartnett J was heard and determined by a Senior Judicial Registrar. Orders were made by the Senior Judicial Registrar as follows:
1.That the Application in a Case dated 4 November 2022 pertaining to the recovery order for [Y] be dismissed.
2.That pursuant to section 102QE of the Family Law Act 1975 and the Orders dated 23 August 2019, leave to file the Amended Application in a Case filed 16 November 2022 is not granted.
3.That the Amended Application in a Case filed 16 November 2022 be removed from the Court file.
On 18 November 2022, the mother filed an Application for Review of the exercise of power by the Senior Judicial Registrar dismissing her Application in a Proceeding for the issue of a recovery order (“the mother’s Application for Review”). The orders sought by the mother in the Application for Review are:
1.AS PER MY AMENDED APPLICATION IN A PROCEEDINGS FILED 16 NOVEMBER 2022 WHICH AMENDS THE APPLICATION IN A PROCEEDING FILED 4 NOVEMBER 2022.
2.IF NOT GRANTED, THE ORDERS SOUGHT IN MY APPLICATION IN A PROCEEDINGS FILED 4 NOVEMBER 2022.
(As per the original)
The mother’s Application for Review was listed before Smith J on 15 December 2022. It was initially adjourned, his Honour citing concerns that Hogan J had not been informed of Y’s change of residence. On 24 February 2023, Smith J declined to determine the mother’s Application for Review in circumstances where, on his reading of the matter, judgment was currently reserved in relation to applications filed by each of the parties as heard by (or part‑heard, or otherwise listed before) Hogan J on 14 September 2022. The origins grounding this understanding are unclear. It may not have been correct. The mother’s Application for Review was referred to the National Assessment Team (“NAT”).
This is the original hearing of the mother’s Application for Review filed 18 November 2022 allocated to me by the NAT (see r 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)).
The proceedings do not otherwise have a future listing before Hogan J, or any other judicial officer of this Court.
On 13 February 2023, the father commenced fresh proceedings by filing an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking further final parenting orders in respect of the children. The mother filed a Response to the Initiating Application on 15 March 2023 seeking to have both children returned to her care, and that orders be made for them to have no time or communication with the father. Those proceedings are proceedings number BRC 1608 of 2023.
For reasons best known to each of the parties, they only disclosed those proceedings to this Court indirectly by way of their material filed late on the day prior to the review hearing and gave further particulars during the course of the hearing. The mother advised that orders had been made in chambers by a registrar of the Federal Circuit and Family Court of Australia (Division 2) yesterday, vacating a case management hearing and referring the matter to the National Assessment Team for potential transfer of the proceedings to Federal Circuit and Family Court of Australia (Division 1).
At present, the further proceedings commenced by the father remain in Federal Circuit and Family Court of Australia (Division 2). None of the documents in those proceedings were in evidence before me.
THE SUBSEQUENT FILING BY THE MOTHER OF APPLICATIONS AND VOLUMOUS AFFIDAVITS ON THE COURT PORTAL
On 13 March 2023 I made the following orders:
1.The Application for Review of the orders made 17 November 2022 in the exercise of delegated power by [a Senior Judicial Registrar] filed 18 November 2022 be listed for hearing before Justice Campton by way of Microsoft Teams at 10am Friday 17 March 2023.
2.Each of the mother and the father file and serve on or before 12 noon on Thursday 16 March 2023 an outline of case document of no greater than 5 pages setting out the documents they rely upon, the relief sought and any submissions that are considered relevant. Each of the parties are directed to the provisions of r 14.07(1)(2)(3)(b) of the Federal Circuit and Family Court of Australia Rules.
3.Each party is placed on notice by way of these orders that in the event there is no appearance by or on their behalf, the matter may be determined in their absence.
4.The mother is further placed on notice that, subject to time being available on 17 March 2023 consideration maybe given by the Court on its own motion to summarily determining the following Applications in a Proceeding:
(a)The mother’s amended Application in a Proceeding filed 11 December 2022;
(b)The mother’s additional amended Application in a Proceeding filed 11 December 2022.
Since my orders made on 13 March 2023, the mother has filed:
(a)On 14 March 2023, written submissions of 15 pages;
(b)On 14 March 2023, a further affidavit of 44 pages;
(c)On 16 March 2023, an Outline of Case document of seven pages; and
(d)At 2.06 am on the morning of the review hearing, being 17 March 2023, further written submissions of 32 pages. This document was filed on the Court portal under the father’s name. During the course of the review hearing, the mother said that she is currently unable to file documents under her own name on the portal.
In total, the mother has filed a further 98 pages of material in the four days prior to the review hearing. By way of my orders made on 13 March 2023, she was permitted to file five.
Section 102QD sets out the consequences of proceedings in contravention of a s 102QB vexatious proceedings order as follows:
102QD Proceedings in contravention of vexatious proceedings order
(1) If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:
(a) the person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and
(b) another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG.
(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.
(3) Without limiting subsection (2), the court may make:
(a) an order declaring proceedings are proceedings to which subsection (2) applies; and
(b) any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.
(4)The court may make an order under subsection (3) on its own initiative or on the application of any of the following:
(a) the Attorney‑General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
The mother absent leave purported to file an Amended Application for Review at 5.56 pm on 11 December 2022. The relief sought therein is as follows:
1.AS PER MY AMENDED APPLICATION IN A PROCEEDINGS FILED 16 NOVEMBER 2022 WHICH AMENDS THE APPLICATION IN A PROCEEDING FILED 4 NOVEMBER 2022 AND THE ORDERS SOUGHT IN MY AMENDED APPLICATION IN A PROCEEDINGS FILED 11 DECEMBER 2022
2.IF NOT GRANTED, THE ORDERS SOUGHT IN MY APPLICATION IN A PROCEEDINGS FILED 4 NOVEMBER 2022 AND THE ORDERS SOUGHT IN MY AMENDED APPLICATION IN A PROCEEDINGS FILED 11 DECEMBER 2022
3.THAT IN THE EVENT THAT LEAVE IS REQUIRED TO FILE THE AMENDED APPLICATION IN A PROCEEDINGS ON 16 NOVEMBER 2022, THAT LEAVE IS GRANTED
4.THAT IN THE EVENT THAT LEAVE IS REQUIRED TO FILE THE AMENDED APPLICATION IN A PROCEEDINGS FILED ON 11 DECEMBER 2022, THAT LEAVE IS GRANTED
5.THAT IN THE EVENT THAT LEAVE IS REQUIRED TO FILE THE AMENDED APPLICATION FOR REVIEW OF REGISTRAR'S DECISION FILED ON 11 DECEMBER 2022, THAT LEAVE IS GRANTED.
The mother did not file any affidavit identified to be in support of the purported filed Amended Application for Review filed on 11 December 2022.
Absent leave, by operation of the order made by Carew J on 23 August 2019 and of Hartnett J made on 15 November 2022, the mother was prohibited from amending the relief sought on review other than that confined to the recovery order sought as to Y as determined by the Senior Judicial Registrar on 17 November 2022. Absent leave, the filing of the Amended Application for Review is a nullity. By operation of s102QD of the Act that amended application is stayed in so far as it expands the relief for which leave was granted by Hartnett J being as to a recovery order only.
Section 43 of the Federal Circuit and Family Court Act 2021 (Cth) (“the FCFCOA Act”) is in the following terms:
In every matter before the Federal Circuit and Family Court of Australia (Division 1), the Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c)all matters in controversy between the parties may be completely and finally determined; and
(d)all multiplicity of proceedings concerning any of those matters may be avoided.
The application of s 43 is obligatory. The obligation is imposed upon the Court, not the parties. The Court “must” grant such remedies as far as possible to determine matters finally and to avoid a multiplicity of proceedings
On the Court’s own motion, progressing the mandate prescribed by the FCFCOA Act, orders will be made voiding the filing of that document and for it to be removed from the Commonwealth Courts Portal or in the event that course is unavailable, it will be dismissed.
To date, notwithstanding the order made by Carew J on 23 August 2019, it appears that there has been no restriction on the capacity of the mother to file documents on the court portal. She has filed the same document on multiple occasions, or filed documents that are substantially the same only days or weeks apart, or she has filed successive applications seeking the same or substantially the same relief in a wholly unrestricted manner.
An examination of the court file reveals that since the mother’s Application in a Proceeding was determined by Hartnett J on 15 November 2022 (that application being accompanied by an affidavit filed on 4 November 2022 of 25 pages), she has filed a further:
(a)An affidavit on 14 November 2022 of 19 pages in length. This exact same affidavit was filed again on 17 November 2022; and
(b)An affidavit on 16 November 2022 of 10 pages in length. This exact same affidavit was filed again on 17 November 2022; and
(c)An affidavit on 17 November 2022 of 25 pages in length. This exact same affidavit was had already been filed by the mother on 6 November 2022; and
(d)An Application in a Proceeding on 17 November 2017. This Application in a Proceeding was amended by an Application in a Proceeding filed at 5.57 pm on 11 December 2022 seeking broadly:
·Urgent determination;
·Leave to institute proceedings under s 102QE the Act;
·Leave to file an Application–Enforcement, with such application to be listed and determined on an urgent basis;
·Leave to file various Applications–Contravention, all to be listed and determined on an urgent basis;
·Orders for the father to return various items of property to the mother;
·Repeal of the ‘Friendly Parent Provision’ be observed by the Court;
·Enforcement Order 2 of final orders dated 12 December 2018, being that the children live with the mother;
·That the matter not be listed before Carew or Baumann JJ;
·Leave to file subpoena to OO Company and to Westpac Banking Corporation.
(e)Another Application in a Proceeding on 23 November 2022. This Application in a Proceeding was amended by an Application in a Proceeding filed at 6.34 pm also on 11 December 2022 seeking broadly:
·Urgent determination of Review Application filed 17 November 2022;
·Matter be considered a continuation of the current approved application for leave on 15 November 2022 (leave for recovery order aspect of AIP filed 4 November 2022 to be determined);
·Matter be heard by Hartnett J on 18 November 2022;
·The s 102QB order made by Carew J to be set aside;
·Repeal of the 'Friendly Parent Provision' be observed by the Court;
·In the event leave is required, leave to file an Amended Application in a Proceeding;
·Orders sought in the mother’s Amended Application in a Proceeding filed 11 December 2022 be granted;
·In the event leave required, leave to file Application for Review; and
·In the event leave is not granted to file an Amended Application in a Proceeding, the orders sought in the mother’s Application in a Proceeding filed 4 November 2022 and 11 December 2022 be granted; and
(f)An affidavit on 9 December 2022 of 1828 pages in length.
Each of the above was filed despite the clear provisions of r 5.08 of the Rules, restricting interlocutory applications to one affidavit by the party, not exceeding 25 pages in length and not containing more than 10 annexures. That affidavit material, filed between 6 November 2022 and 9 December 2022, comprised a total of 1,936 pages.
For the reasons identified above by way of the application of s 102QD and the FCFCOA Act, each of the above Application in a Proceeding as amended are currently the subject of a stay. Additionally, in respect of each Application in a Proceeding as amended, s 102QE Act is applicable. It is as follows:
1. This section applies to a person (the applicant) who is:
(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
2.The applicant may apply to the court for leave to institute proceedings that are subject to the order.
3.The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
4.The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
Notwithstanding the provisions of s 102QE(4) and contrary to the mandate prescribed therein, the mother served the father with each of the above documents.
Section 102QF of the Act prescribes that the application for leave pursuant to s 102QE can be determined without an oral hearing and can be dealt with in chambers. I took the view that the mother should be provided the opportunity to make her arguments in open court.
Consistent with that as determined by Hartnett J on 15 November 2022 recorded above, as was the case with the mother’s November affidavits, the affidavit of the mother filed on 9 December 2022 does not comply with the mandates of s 102QE(3) of the Act. Notwithstanding the extraordinary volume of the affidavit, it does not transverse the mandatory three categories of evidence to be included in it. The affidavit compromises a combination of largely irrelevant, repetitious and inadmissible historical material pre-dating the hearing before Hogan J sprinkled with sections of legislation, precedent and argument. It records that the 25-page limit on affidavits as prescribed by r 5.08 of the Rules is unreasonable and that “10 years of history” of the proceedings cannot be curtailed to a small number of pages. The affidavit repeats the long running complaints of the mother as to the father’s parenting of the children, as to him posing an unacceptable risk to the children, as to his breach of orders, as to him committing perjury and perpetrating family violence. The document could be described as a cocktail of submissions supported by conclusions drawn by the mother.
In circumstances where the evidence in support of each Application in a Proceeding as amended does not comply with s 102QE(3) of the Act, and for the same reasoning as identified above in paragraphs [24] and [25], those Applications in a Proceeding will be dismissed.
If I am in error in this conclusion, I find that the relief by way of leave sought by the mother in each Application in a Proceeding as amended in reality substantially mirrors that presently before Hogan J, such that in circumstances they occasion an abuse of process as the mother is seeking leave to re-litigate the same issues, or issues that overlap or significantly overlap, or there is a similarity of issues. It is vexatious to bring two extant actions where one will lie, especially when the two actions are in the one court. Such conduct is unjustifiably oppressive and ought to be struck out. A failure to do so would permit the use of the Court’s procedures to bring the administration of justice into disrepute. (see Rogers v The Queen (1994) 181 CLR 251 at 286 per McHugh J).
THE MOTHER'S APPLICATION FOR A RECOVERY OF Y
In her Case Outline document filed on 16 March 2023, the mother sought to rely upon:
(a)Paragraph 1 of her Application in a Proceeding filed on 4 November 2022 pursuant to the leave granted by Hartnett J on 15 November 2022 for a recovery order to issue in respect of Y;
(b)Her Application for Review filed on 17 November 2022;
(c)“All material filed by [her] in the proceedings from the beginning”. That is, the mother sought to rely on the now well in excess of 100 documents she has filed in these proceedings since their commencement on 27 March 2013.
During the course of the review hearing I identified to the mother that r 14.07(2) of the Rules provides that in the original hearing of a review application, the Court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing; or
(b) with the leave of the court, any further affidavit or exhibit; …
The mother directed the Court’s attention to Order 4 made by Smith J on 23 November 2022, being that:
4.Pursuant to Rule 5.08 each party will be allowed to rely upon a single affidavit of no more than 25 pages and no more than 10 annexures.
Remarkably, the mother contended that she filed her affidavit on 9 December 2022 of 1828 pages in length pursuant to that order. Plainly, that document does not comply with Order 4, nor with r 5.08 of the Rules. I indicated to the mother that she would not be permitted to rely on that whole document for the purpose of the review hearing, such that she could select 25 pages from that document to rely on should she so choose.
Under protest, the mother said that in addition to her Application in a Proceeding filed on 4 November 2022 and Application for Review filed on 17 November 2022, she would rely upon the following documents for the purpose of the review hearing:
(a)Her affidavit filed 14 March 2023;
(b)An affidavit of Dr YY filed on 12 September 2022;
(c)An affidavit of Mr ZZ filed on 12 September 2022; and
(d)As recorded at [16]–[18] above, three documents containing written submissions (filed 16 November 2022, 14 and 17 March 2023) and a Case Outline document (filed 16 March 2023);
(e)A Notice of Notice of Child Abuse Family Violence or Risk filed by the mother in proceedings number BRC 1608 of 2023 on 15 March 2023, and emailed to my chambers on 17 March 2023.
In the review hearing the mother said that Dr YY was a “coercive control expert”. She conceded Dr YY was not a single expert witness engaged pursuant to the Rules. The mother did not identify permission being granted for her to rely on the evidence of Dr YY as an expert other than a single expert witness pursuant to Div 7.1.3 of the Rules. In those circumstances, I will not read or consider Dr YY’s affidavit filed on 12 September 2022 for the purpose of my hearing of the mother’s Application for Review.
The mother said that Mr ZZ is a Justice of the Peace, who she requested to listen to audio recordings of proceedings before a magistrates Court to verify the accuracy of a transcript. The mother contends that the transcript listened to by Mr ZZ confirms the mother’s assertions as to X being groomed under the father’s watch and establishes the absence of the father’s credibility and that he has lied in things he said. The evidence has little relevance to the issue of a recovery order.
The father opposes the recovery order in respect of Y. In addition to his Response to the mother’s Application in a Proceeding filed on 16 November 2022 which seeks that the mother’s application be dismissed, the father relied upon:
(a)His affidavit filed 16 November 2022; and
(b)His Case Outline filed on 16 March 2023.
The law
The mother’s application for a recovery order in respect of Y is made under Div 8 of Pt VII of the Act.
Section 67U of the Act provides that subject to s 67V, the Court may make such recovery order as it thinks proper. Section 67V provides that, in deciding whether to make a recovery order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Section 60CC sets out the primary and additional considerations to be considered by the Court in determining what is in a child’s best interests.
The first primary s 60CC consideration is the benefit of the child of having a meaningful relationship with both parents. This is currently not being met as the child has not been made available to her mother and the father has not returned the child. The other primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying these primary considerations, the Court is to give greater weight to the second primary consideration, the protection from harm. Section 60CC(3) identifies the additional considerations, which include the views and maturity of the child, the capacity of the parents’ to meet the needs of the child, including emotional and intellectual needs, and considerations of the practicality of orders, among others.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated at [76]-[77]:
76.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.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
In reaching my decision, I have considered all of the relevant sections of the Act albeit that I am not required as a matter of law to specifically address each such consideration. I will now address the relevant issues.
The evidence of each party relevant to the recovery order
The vast majority of facts in this matter are the subject of contest between the parents. The completely polarised positions of the parties can be illustrated by reference to their disputes on two simple factual issues:
(a)The father gave evidence that X, who is approaching 17, has left school and is working full time while undertaking study. It is the mother’s case that there is no evidence to ground support the fact asserted by the father that X is working. Upon exploring the foundation for the mother’s contention in the hearing, the mother refused to accept the evidence contained in paragraph 4 of the father’s affidavit filed 16 November 2022 on this subject matter. She said that she “does not know what [X] is doing”. Against that background, the mother further said she cannot believe a word spoken by the father and repeated criticisms as to the integrity of the evidence. She said the father lies and has perjured himself in the course of these proceedings and before other courts.
(b)The father’s evidence is that Y said she “ran away” from the mother’s home because of worries that her mother would relocate “far away” such that she would no longer be able to see the father or X. The mother’s case was that Y was vulnerable at the time she moved to the father’s home because of a dispute she had with a teacher at her school. The mother could not reconcile the fact that Y having grievances with her teacher at school could also have occurred, and was not inconsistent with her also being upset about the possibility of moving away from the father and X. It was her blinkered position that only one version of events could be true and the other was false. Her default position was that the father would lie and perjure himself.
It is the mother’s case, as recorded in her submissions filed on 17 March 2023, that the father has “unilaterally removed both children from [the mother’s] court-ordered care” and in doing so, has breached the final parenting orders of Hogan J made 12 December 2018.
The mother’s affidavit evidence gives no context as to how Y transitioning to the father’s care in late 2022 came about. She did not give evidence as to the dynamic between herself and Y in her household in the lead-up to the event, including as to the conversations she had (if any) with Y immediately prior to her leaving the mother’s home. In oral submissions the mother said that Y leaving her home had “nothing to do with [her]”.
Doing the best I can to distil from the mother’s extensive material (that is, from her affidavit filed 14 March 2023, and from her written and oral submissions and her Case Outline document), the mother said that in late 2021 Y had an issue with one of her teachers at school, which caused her some “minor teenage discomfort”. It was her case that the father “seized this opportunity… to abduct [Y]”. That belief appears to be grounded on an assertion that “the evidence demonstrates an adult male (likely [the father]) having a conversation with [Y] during school lunch, the day before she went missing on her way to school”. In her affidavit the mother asserted the father’s motivations in “taking” Y was to minimise the child support he is assessed to pay the mother.
In the course of the review hearing the mother confirmed she has not had contact with Y since she left the mother’s residence in late 2022, either directly or indirectly. She also confirmed she has had no contact with X since late 2021. The mother implicitly contends that the father has prevented each of X and Y from contacting or spending time with the mother.
The mother gave evidence of her attempts to collect Y from her high school in early 2023. She alleged that on that date, the school principal:
38.…committed a criminal offence under s 70NAC of the [Act] in aiding and abetting [the father] to contravene the Orders of this Court, and returned [Y] to him via a back entrance of the School; which was equally a criminal breach of the in-force Queensland Domestic Violence Order by both parties.
She expressed concerns that Y has not transitioned to the father’s care at her own behest but that she had “most likely been threatened, manipulated and/or coerced by [the] father” to tell authorities that she is “self-placing” with the father and X.
The mother asserts a plethora of broad-ranging and very serious risks to the children in the father’s care, which include but are not limited to:
(a)That the father has made “zero effort to have the children returned to [the mother] and has only encouraged them to stay away from [her]”;
(b)That both children are at serious risk of “physical, emotional, psychological and sexual risk of harm as well as of criminal negligence and general parental neglect”;
(c)That the father has engaged in coercive and controlling family violence against herself and the children;
(d)That “[X] has been groomed by a paedophile and been sexually assaulted” arising from the father permitting the children to have unrestricted internet access, and that the father has done nothing to stop this happening. In her oral submissions, the mother drew a nexus between the “grooming” and “sexual abuse” of X, and the current risk of sexual harm to Y.
The mother’s various allegations are made absent supporting evidence from credible, reliable sources, such as the children’s school or the police and child welfare authorities. She did not do so. She did seek to subpoena, or seek leave to subpoena, those persons.
The mother contends that nine separate “domestic violence orders” have been made against the father, naming herself and the children as protected persons. She says those orders were made on nine occasions between 2012 and 2022.
The mother’s allegations are serious. That said, the evidence that the mother relies upon to ground those allegations (at this time) is not objectively persuasive. Consistent with the examples set out earlier in these reasons, the evidence of the mother records a contended fact that may or may not have foundation, and then draws strong conclusions that are not clearly available from those contended facts. On occasions the jump the mother makes between her statements of fact and the conclusions she draws from them are not (at this time, on the material before me) logically sound.
A disturbing undercurrent is recurrent in the mother’s material as filed of implicit threats to any institution or person who fails to progress her objectives. These include judicial officers, schools school principals and others. Particularly disturbing extracts from her submissions filed on 14 March 2023 included:
44. It is an abuse of power and a denial of procedural fairness and natural justice to tell a Mother, who has been subjected to decades of domestic violence with proven evidence from transcripts from Magistrates Court proceedings and findings of facts made by many different Magistrates about the Respondent being a perpetrator of domestic violence and breaching orders and the Respondent’s own admissions of committing family violence and the children being witnesses to it and evidence of neglect and abuse of the children and sexual harm occuring to our oldest […] daughter by the Respondent allowing her to be groomed and sexually assaulted because of unsupervised internet usage, that she needs to be a friendly parent to a perpetrator who has shown no remorse and is not “a changed man”.
…
73. Since 20 March 2020, it is a criminal offence per s273B.4 Criminal Code Act 1995 (Cth) for any Commonwealth Officer (including any Judge) with authority over Children, to place a child or continue to allow a child to be placed at a risk of sexual harm. This forbids Commonwealth Officers including Judges from placing or leaving children at risk of sexual harm and is a 5 year indictable offence.
74. The Court cannot legally make any other Order but to remove [Y] from the Father to prevent [Y] from going down the same path. 36. The Court, at best, can allow contact with the Father only via a supervised Contact Centre, to protect the Children from exposure to sexual content and adult themes.
(As per the original)
In his affidavit, the father gave evidence that “recently” (he did not specify when), Y contacted him and relayed to him that the mother had bought a caravan with the intention of leaving Brisbane, and travelling “as far away as possible so [Y] will ‘never see [X and the father] again’”. It was the father’s evidence that after that conversation, Y ran away from the mother’s home and has since moved in with him. He deposed that:
7. When [Y] did leave her mother recently I immediately went to the Police at [AB Town] and I was referred to the Child Protection Unit there. After making enquiries they delivered [Y] up to me and she is residing with me.
The father did not give any evidence as to what, if anything, he was told by the police in respect of Y’s residence.
In the course of the hearing the father said that X was not engaging in school, but has flourished since leaving school and is currently working full time. He said that Y has continued to do well in school, albeit that she has recently moved schools, and that she is in an advanced mathematics class.
For the purposes of the recovery orders, looking generally at the s 60CC factors and having regard to the very polarised evidence of the mother and father, the facts that are uncontroversial and relevant to the mother’s application for a recovery order are:
(a)That after the final parenting orders made by Hogan J on 12 December 2018, the children lived with the mother;
(b)In late 2021, X transitioned from the mother’s care to the father’s care;
(c)The mother has not spoken to or spent time with X since late 2021;
(d)In late 2022, Y transitioned from the mother’s care to the father’s care;
(e)The mother has not spoken to or spent time with Y since late 2022;
(f)Neither Y or X have attempted to contact the mother electronically or by telephone since transitioning to the father’s care;
(g)When the mother attended Y’s school in early 2023, Y would not see the mother and decamped the school via a back entrance;
(h)Involvement by the police and child welfare authorities have not identified the children as being at risk in the father’s care and have not sought to enforce the final parenting orders for the children to live with the mother;
(i)In the event a recovery order is made on this occasion:
(i)The mother anticipates a further recovery order will need to be made, or says that a permanent recovery order should lie in the Registry of this Court, either because she expects that either the father will “abduct” Y again, or Y will vote with her feet and abscond to the father;
(ii)The mother would change Y’s school enrolment back to her previous school at AC School;
(iii)Y and the mother would move to a “secret location” (see paragraph 36 of the mother’s affidavit filed 14 March 2023);
(iv)The mother would require Y (and X should she return to the mother’s care) to undertake intensive in-care psychotherapy or therapy to rectify her alienation against the mother (see paragraph 64 of the mother’s affidavit filed 14 March 2023); and
(v)There would be no contact between Y and the father (and hence between Y and X in circumstances where X continues to live with the father).
As was mother identified in oral submissions and in her affidavit evidence, the children are currently alienated from her. That did not seem to be controversial. The mother’s case is that the alienation has been engineered by the father. That assertion was controversial. The father contends that Y and X each ran away from the mother and have self-placed with him. It is his case that Y’s relationship with the mother has broken down, and that Y’s reasons for not wishing to have any contact with the mother are a product of her own experience with the mother.
During the review hearing, the father said that he wanted the children to be interviewed by an officer of the Court (presumably a Court Child Expert) to obtain evidence as to their views and to opine on the weight to be attached to those views. The mother foreshadowed that the children’s views, if elicited by an appropriate officer, will be contrary to the case that she prosecutes. It was her submission that “the reality of the evidence” (referring to the mother’s other evidence as to risk), “speaks for itself”. She reiterated her position that the father will coerce or influence the children into being aligned with him. I understand the mother’s submissions to be that any such evidence as to the children’s views would disclose matters that would not assist the mother’s case for a recovery order.
During the course of the review hearing I raised with the parties that a recovery order is a particularly blunt instrument to enforce parenting orders. It would involve the intervention of the police to collect Y and return her forcibly to the mother’s home. It is a process that would reasonably occasion a degree of trauma to a child of Y’s age, who inferentially has expressed very strong views about not living or communicating with the mother. I have concerns about the cumulative trauma that may occasion to Y should such a recovery order issue and then the mother enforce her proposal articulated for Y to again change schools (mid-year), for she and Y to move to a “secret location”, for Y to thereafter engage in an intensive therapy process, all while being separated from her older sister, X, and the father, with whom she has lived for the past few months.
Conclusion as to the mother’s application for review
In all of the circumstances, having regard to the uncontroversial evidence and acting conservatively, I am of the view that it is appropriate and in the best interests of Y to dismiss the mother’s application for a recovery order. In those circumstances, the mother’s Application for Review will be dismissed.
The matters agitated by the mother are currently listed before Hogan J for consideration. As identified by Smith J, both parties have the capacity to seek a listing of the matter before Hogan J. Additionally, both parties will have the opportunity to agitate the matters in the proceedings commenced by the father and responded to by the mother, being BRC 1608 of 2023, which are currently before the Federal Circuit and Family Court of Australia (Division 2).
I do not at this point express a view as to whether the father’s initiation of fresh parenting proceedings in that forum is an abuse of process. The mother made it plain during the course of the trial that she will see that the father’s Initiating Application to discharge the final parenting orders made on 12 December 2018 such that the children live with him and spend no time with the mother be summarily dismissed for that reason.
THE FUTURE PATHWAY OF PROCEEDINGS IN THIS COURT
Section 67 of the FCFCOA Act reiterates and elaborates on the overarching purpose of the family law practice and procedure. It imposes a duty to promote the overarching purpose in applying the Rules. Section 68 obliges parties to act consistently with this overarching purpose. The FCFCOA Act mandates the efficient use of the judicial and administrative resources available for the purposes of the Court’s business, the efficient disposal of the Court’s overall caseload and the disposal of proceedings in a timely manner at a cost that is proportionate to the importance and complexity of the matters in dispute.
It is trite to observe that the litigation in this matter has not advanced for years. Each of the parents are not changing. Each time the matter has come back before the Court the issues ventilated by the parents are broadly the same, their dynamics are the same, and it may be that it reaches a stage where the Court no longer has a role to play in the regulation of the parenting of the children. The resources of this court are not limitless. There are many other families in crisis who need the services and assistance of this Court. It may be in the best interests of the children that the Court step aside to allow other state based welfare agencies who have the benefit of “being in the field” with greater on hand resources to assist these children and the parents. That will be a matter for the judicial officers hearing the balance of the outstanding applications to determine.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 17 March 2023
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