DREWRY & FIRE
[2015] FamCA 308
•30 April 2015
FAMILY COURT OF AUSTRALIA
| DREWRY & FIRE | [2015] FamCA 308 |
| FAMILY LAW – PRACTICE & PROCEDURE – Application to reopen – Rice & Asplund (1979) FLC 90-725 considered – where final orders have been made – where the mother seeks to reopen parenting proceedings approximately two months after final orders were made – no significant change of circumstance shown to justify reopening – application to reopen dismissed |
FAMILY LAW – PRACTICE & PROCEDURE – Application by the father to declare the mother a vexatious litigant pursuant to s 102QB of the Family Law Act 1975 (Cth) – where the mother has filed applications to reopen parenting proceedings without justification shortly after final orders were made on two separate occasions – where the proceedings have a long history – final orders made prohibiting the mother from instituting parenting proceedings without first obtaining leave of the court
| Family Law Act 1975 (Cth) s 102Q, 102QB Family Law Rules 2004 (Cth) |
| Attorney-General v Altaranesi [2013] NSWSC 63 Cannon & Acres [2014] FamCA 104 Freeman & Freeman (1987) FLC 91-857; (1986) 11 Fam LR 293 Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570 |
| APPLICANT: | Ms Drewry |
| RESPONDENT: | Mr Fire |
| FILE NUMBER: | MLC | 12680 | of | 2007 |
| DATE DELIVERED: | 30 April 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 20 March 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Orders
That the mother’s Application in a Case filed 17 March 2015 and Initiating Application filed 24 February 2015 be dismissed.
That pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the applicant, Ms Drewry, be prohibited from instituting parenting proceedings with respect to B born … 2003, C born … 2005 and D born … 2006 (“the children”) under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act, save that this vexatious proceeding order does not apply to:
(a)Any costs application of the mother arising from these orders filed prescribed under the Family Law Rules 2004 (Cth); or
(b)Any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 (Cth) or such other time as is permitted by order of the Full Court.
That the father’s Response to Initiating Application filed 18 March 2015 and Response to Application in a Case filed 19 March 2015 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Drewry & Fire has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 12680 of 2007
| Ms Drewry |
Applicant
And
| Mr Fire |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 15 December 2014 I published my Reasons for Judgment in relation to parenting proceedings conducted before me with respect to the parties’ three children aged 11, nine and eight years. In the first paragraph of that judgment, I observed that these children have been at the centre of the conflict between their parents since 2007. Notwithstanding the orders made that day and my findings in relation to the matters then before me, the mother has filed fresh applications seeking to re-open proceedings with respect to the parenting arrangements for the children.
On 24 February 2015, being little more than two months since I made final orders in the matter, the mother filed the following applications:-
·Application – Contravention; and
·Initiating Application.
Further, on 17 March 2015 the mother filed an Application in a Case seeking parenting orders as well as orders with respect to child support.
Those applications were listed before me on 20 March 2015 in a Judicial Duty List.
On 18 March 2015 the father filed a Response to Initiating Application and on 19 March 2015 he filed a Response to an Application in a Case. Each of those documents seeks that the mother’s corresponding applications be dismissed. Further, the father seeks an order pursuant to s 102QB of the Family Law Act1975 (Cth) (“the Act”) that the mother be prohibited from commencing further proceedings in the Court without first obtaining leave of the Court to commence such proceedings.
The father seeks a dismissal of the mother’s parenting application on the basis that there is no change of circumstance since final orders were made by me on 15 December 2014 that would justify the re-litigating of the parenting issues. The father relies upon the principles enunciated in Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570 (“Rice & Asplund”) in support of that position.
Background
The mother is Ms Drewry. She is aged 44 years. She is a nurse and has permanent employment at the E Hospital.
The mother has recently secured rental accommodation in Suburb F. That property is a two-bedroom unit situated approximately 120 metres from the children’s primary school. It is common ground that that residence is at the rear of the children’s school.
The father is Mr Fire. He is aged 43 years. He is engaged in full-time employment as a manager.
The father lives in Suburb G with his current wife, Ms Fire, and the parties’ children.
The parties commenced cohabitation in 1998 and married in 2000. Separation occurred in or about October 2007 and the parties divorced in 2009.
There are three children of the marriage: B aged 11 years, C aged nine years and D aged eight years. The children attend Suburb F Primary School where they are in Grades six, four and three respectively. This year B is the school captain at that school. By all accounts the children are progressing well.
The children have been the subject of litigation in the Federal Magistrates Court, as it then was, the Federal Circuit Court and this Court since late-2007.
In June 2013, a hearing was conducted in the Federal Circuit Court before Judge Turner. That hearing spanned a period of 17 days and culminated in orders made by consent which provided that the children live with the father and spend time with the mother on a supervised basis.
In September 2013, being a period of approximately three months since those orders were made by consent, the mother filed an Initiating Application in the Federal Circuit Court seeking orders that the children be returned to her care. That application was summarily dismissed by Judge Turner in October 2013.
On 13 December 2013, being two months after Judge Turner had dismissed her previous application, the mother filed another Initiating Application seeking orders that the parties have equal shared parental responsibility for the children and that the children live with her. Those proceedings were transferred to the Family Court in December 2013. The mother amended her position with respect to orders sought and at the hearing before me conceded that she sought orders that the children live with the father and spend substantial and significant time with her. That application, together with the father’s response, was heard before me over four days in October 2014. On 15 December 2014, I made final orders in the following terms:-
·That all previous parenting orders be discharged;
·That the father have sole parental responsibility for the children;
·That the children live with the father;
·That the children spend no time with the mother; and
·That the mother be permitted to communicate with the children on one occasion per month, such communication to be by email directed to the father’s email address with such email to be vetted by the father prior to it being shown to the children.
During the proceedings before me which concluded in December 2014, the mother was represented by counsel. The father was self-represented. During final submissions, for the first time in the proceedings, the parties found some common ground. At paragraph 5 of my Reasons for Judgment I noted:-
The ICL and the father sought orders that the children continue to live with the father and spend no time with the mother. Courageously, the mother conceded that the children’s best interests would best be served by orders in those terms. She confirmed that she did not oppose the orders sought by the father.
At paragraph 25 of my Reasons for Judgment, I noted the closing submissions made on behalf of the mother by her counsel. Those submissions were as follows:-
After having heard the evidence [the mother] believes that a no-contact order is in the best interests of the children… [She] believes that she is a good mother. She loves her children dearly and they are everything to her. The mother wishes to put the children’s best interests first and avoid further psychological harm to them by either parent and the mother is therefore prepared to remove herself totally from their lives.
During the course of the 2014 hearing, I had the opportunity to hear evidence of both the mother and the father. In addition, I had the benefit of reports by Dr H, psychiatrist, who conducted a psychiatric assessment of the mother, and Mr I, Family Consultant, who prepared a detailed Family Report in relation to the matter. Both Dr H and Mr I were cross-examined in relation to their reports.
The allegation raised by the father during the course of those proceedings was that the mother had undermined his role and embroiled the children in the parental conflict to such an extent that the children are at risk of psychological and emotional harm in the mother’s care. In relation to the father’s parenting capacity, I found at paragraph 105 of the judgment as follows:-
The evidence of [Mr I], [Ms J] and the father supports the view that the father is a loving parent who has sought to promote and support the mother’s relationship with the children. The father has been child-focussed in his actions, for example continuing to support the children’s enrolment at the primary school they attended when in the mother’s care, notwithstanding the fact that that requires him to transport the children across Melbourne, a trip of some 45 minutes each way.
As to the mother’s insight as to the role the father plays in the children’s lives, I found at paragraph 106 as follows:-
That the mother fails to recognise the importance of the father’s role in the children’s lives or the efforts he has made to support her relationship with the children highlights her lack of insight and awareness as to her own difficulties as well as a lack of insight as to the father’s role in the children’s lives. I am satisfied that the mother elevates her own need to be a mother above the children’s need to have a relationship with their mother and their father.
Dr H raised serious concerns as to the mother’s insight and capacity for change during his evidence. At paragraphs 107 to 113 inclusive of my judgment, I noted Dr H’s evidence, which I accepted, as follows:-
107.[Dr H] describes the mother’s presentation at interview as follows:-
She tended to repeat herself in respect of the need for the children to be in her primary care. This remained a fixed feature of the assessment. [The mother] spoke unrelentingly about those matters. She spoke of her hurt and disappointment as to the recent Court deliberations and removal of the children from her care. She remains utterly convinced that the children’s well-being will only be afforded to them if she is their primary carer. She was unable to contemplate any other possibilities and has again instigated Court proceedings to regain their residence. Whilst [Ms Drewry] would not be regarded as having frank delusional beliefs, it was readily evident that she has a fixed and over-valued idea which dominates the clinical picture and mental life. She remains utterly convinced that the children need her and that nothing else will suffice.
108.Dr H diagnosed the mother with an adjustment disorder with depressed and anxious mood.
109.Dr H’s prognosis for the mother’s future was pessimistic. At paragraph 3 of his opinion on page 14 he notes:-
Having seen [the mother] now on three occasions, she essentially presents with the same difficulties as she did initially. Various treatment modalities have not assuaged her strong and fixed belief that the only appropriate care the children can be provided is that which she has provided. As such, she cannot contemplate that in fact the children are well cared for by [the father], who she feels has conspired against her, and together with his legal team, she has lost out to. As such, she cannot join with him in any way, shape or form, and hence is left to continue as she says, to not rest until she brings about a return of the children to herself.
110.At paragraph five on page 15 of his report Dr H concludes:-
Psychiatrically she has an over-valued idea which is similar to that of a delusional belief, that is, an opinion which cannot be altered by reason or experience. One gains the strong impression that [the mother] will carry all of this with her for the foreseeable future. Essentially she is not someone who is likely to benefit from treatment. In reading between the lines, I note [Dr K] has come to much the same position. It is difficult to know how to help [the mother] at this time.
111.As to the question of whether the mother has the capacity to support the children’s relationship with the father, again Dr H’s view was pessimistic. At paragraph six of his opinion, he notes:-
Whilst she is no doubt a loving and caring mother, the matter now before the court relates largely to each of the partners’ ability to promote the relationship between the children and the other parent. On that question, [the mother] appears to fail the test. She is not interested in any other option than her having control of the children and for them to live with her as their ‘primary carer’, relegating the husband to second weekend contact, a position which clearly she could not bear to entertain for herself.
112.During cross-examination Dr H amplified the views expressed in his report. As to the mother’s lack of insight Dr H noted:-
… it’s immutable. She has a formed view which over the three assessments that I have seen her remains exactly the same and that is that she is the only one who could possibly look after the children, that the father essentially can’t, and that she is the perfect mother and that she won’t rest until they are back in her care because they will suffer otherwise … she continues to perceive [the father] as a thorn in her side and as has been indicated here that you can never trust him and so on and so forth. So that’s not changed so that whilst I made the diagnosis of an adjustment disorder, the condition is far more severe than that.
113.Dr H was questioned as to his diagnosis that the mother suffers from an adjustment disorder. Dr H clarified his position noting as follows:-
The term ‘adjustment disorder’ is a kind of one-fits-all diagnosis which we use when someone shows or develops symptoms of a psychiatric condition in reaction to something. But there is a lot more to it in this matter because that doesn’t explain the deeper aspects of her vulnerability, her terrible sense of pain as a result of being separated from the children. It needs to be remembered that she lost her mother when she was only 18 and we know that people who suffer such losses and deaths are very vulnerable to psychiatric conditions later on in their life. So if I was pressed – and I was very cautious about this – my view would be that she has got some borderline features to her personality - emotional intensity, inability to regulate herself.
A little more than two months after the publication of that judgment, the mother now seeks to vary the orders to provide that the children live with her and spend time with the father on a limited basis. The father opposes any changes to the orders. The father’s position is that there is no evidence before the Court which would justify a finding that there has been a significant change of circumstances since the orders were made. I agree with that submission for the reasons that follow.
The Hearing
At the commencement of the hearing I sought an indication from the mother as to how she wished the Court to deal with her three applications, particularly having regard to the fact that she had filed a Contravention Application as well as applications seeking to change the parenting orders. I indicated to the mother that if she sought to proceed with her Contravention Application, it was unlikely that the Court would be in a position to deal with her substantive parenting application this day.
The mother considered her position and confirmed that it was her preference that her substantive parenting applications proceed. Accordingly, the mother sought leave to withdraw her Contravention Application filed 24 February 2015. The father did not object to that approach. Therefore, I made an order granting the mother leave to withdraw that application.
I indicated to the mother that I would provide her with the opportunity to attend upon the duty lawyer at Court prior to the commencement of the hearing to enable her to obtain advice with respect to the matters raised in the father’s response. The mother declined the invitation to attend upon the duty lawyer.
Given the nature of the issues raised in the father’s response, being that he seeks a dismissal of the substantive parenting applications relying on the principles espoused in Rice & Asplund as well as orders that the mother be declared a vexatious litigant, prior to the commencement of the hearing I arranged for my Legal Associate to provide to the parties copies of the decision in Rice & Asplund, as well as the Full Court decision of Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 (“Marsden & Winch”). I also arranged for my Legal Associate to provide to both parties a copy of Part XIB of the Act relating to vexatious proceedings.
Prior to standing the matter down, I indicated to the parties that, given the late service of the father’s response, if the mother sought an adjournment of the proceedings to enable her to obtain advice with respect to the husband’s application for vexatious proceedings orders, I would likely accede to such application to ensure that she was able to consider and address all relevant matters in response to that application. I impressed upon both parties the seriousness of the father’s application.
The matter was stood down for a period of approximately one hour to enable the parties to consider the materials provided to them and to enable them to frame their submissions to address the matters raised in those materials.
At the resumption of the hearing the mother confirmed that she sought to have all matters dealt with on that same day if practicable. The parties agreed that the threshold issue in relation to Rice & Asplund together with the father’s application seeking that the mother be declared a vexatious litigant could, and should, be dealt with on submission, taking into account the evidence in the affidavit material relied upon by each of them.
Material Relied Upon and Orders Sought
The mother relied upon the following material:-
·Initiating Application filed 24 February 2015;
·Application in a Case filed 17 March 2015;
·Affidavit of the mother filed 24 February 2015;
·Affidavit of the mother filed 17 March 2015; and
·Affidavit of Dr L filed 12 March 2015.
The father relied upon by the following material:-
·Response to Initiating Application filed 18 March 2015;
·Response to an Application in a Case filed 19 March 2015; and
·Affidavit of the father filed 18 March 2015.
In her Initiating Application, the mother sought final orders that:-
·The matter be listed before me urgently;
·Pursuant to s 63H of the Act the Court set aside the existing parenting orders;
·The current orders be discharged “based on the gross negligence of the ICL, the resulting inaccuracy of court reports and findings”;
·The children be returned to the full time care of the mother, without any supervision;
·The mother have sole parental responsibility;
·There be a departure order or stay order with respect to the mother’s child support obligations;
·The father be restrained from denigrating the mother;
·The report of the Family Consultant Mr I and the affidavit of Dr H filed in the previous proceedings be “discharged entirely from the court record”;
·The Court conduct an inquiry as to the conduct of the Independent Children’s Lawyer (“the ICL”) and as to the assessment conducted by the Family Consultant with respect to the proceedings in October 2014; and
·The Court do “all possible to allow the mother to persue [sic] compensation for pain, suffering, damages, costs and immeasurable grief” arising from the “negligence” of the ICL, the father’s former lawyers, the children’s therapeutic counsellor, Dr H and the mother’s former lawyer.
In addition to those orders, the mother in her Application in a Case filed 17 March 2015 sought interim orders that:-
·The Court discharge an intervention order made in the Magistrates’ Court of Victoria on 25 February 2015;
·The mother be reinstated as the children’s primary carer;
·The children be returned to the mother’s care immediately, without supervision;
·The children remain at their current primary school;
·The father spend time with the children from 5.00 pm to 7.30 pm each alternate Wednesday;
·The children spend time with the mother at specified times during the Easter holidays, Mother’s Day, their birthdays and other nominated special days; and
·The father reimburse the mother for child support paid by her since May 2013, and fees paid by her for supervision of her time with the children and her legal costs since June 2013.
In response the father sought orders in the following terms:-
·That the mother’s applications filed 24 February 2015 and 17 March 2015 be dismissed; and
·That by way of vexatious proceedings order the mother be prohibited from instituting proceedings in relation to the children without first having been granted leave of the Court.
During preliminary discussions with the mother in relation to her applications, I indicated that parts of her applications were misguided. Many parts of the mother’s applications raised issues that were either not within the Court’s power (such as setting aside orders made in the Magistrates’ Court, conducting an inquiry as to the alleged professional misconduct of the ICL and other professionals who have had a role in the proceedings, and the award of damages to the mother arising from that alleged misconduct) or were not issues relevant to the matters before the Court (such as the application to set aside orders relying on s 63H of the Act which relates to the setting aside of parenting plans). As a result of those discussions, the mother did not press those parts of her applications. Accordingly, I will dismiss those parts of her application.
The Principle in Rice & Asplund
The mother sought to proceed with her applications for parenting orders, particularly orders that the children be returned to her care. In determining that issue I must have regard to the principles established in Rice & Asplund, where Evatt CJ noted at 78,905 to 78,906 as follows:-
The principles which, in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for … change is an ever-present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some change of 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…
At 78,906 Evatt CJ continued:-
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
It has long been recognised by the Court that on-going litigation is likely to have a deleterious effect on children. In the decision of Freeman & Freeman (1987) FLC 91-857; (1986) 11 Fam LR 293 Strauss J noted at 76,470 to 76,471:-
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian … to deal with the present and plan for the future of the family. It is financially burdensome … The welfare of the children is, in this case, as in any other concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being.
Section 69ZN of the Act sets out the principles for conducting child-related proceedings. The first principle as set out at s 69ZN(3) provides that:-
…the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
The Full Court in Marsden & Winch stated the following in relation to determining whether the Court should embark upon another hearing concerning parental arrangements:-
50.Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The Court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
At paragraph 58 of the judgment, the Full Court described a two-step process to be followed when the principle in Rice & Asplund is invoked. That approach requires:-
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstance to justify embarking on a hearing.
In applying the principles established in Rice & Asplund, the best interests of the children remain the paramount consideration.
What are the Alleged Changed Circumstances?
The mother filed two affidavits in support of her applications seeking changes to the parenting orders made in December 2015. Those affidavits were filed 24 February 2015 and 17 March 2015. Much of the evidence contained in those affidavits focusses on events and issues that arose prior to the final orders made by me in December 2014. For example, the mother alleges that:-
·The ICL did not act fairly or neutrally for the benefit of the children during the proceedings. As a result, the mother alleges that that conduct has adversely affected the outcome of those proceedings;
·The children’s attendance upon Mr M, psychologist, who has provided therapeutic counselling for the children since 2013, has damaged the relationship and attachment between the children and the mother;
·Since 2010 the father has denigrated the mother telling the children that “mummy is sick in the head”;
·There have been on-going issues between the parties with respect to the mother’s child support liability since the children commenced living with the father in May 2013. As a result of the mother’s alleged severe financial hardship in November 2014, she made application to be declared a bankrupt; and
·Since the change of residence of the children in May 2013, the mother alleges that they have become more withdrawn and that D’s performance at school has deteriorated since that time.
Each of these matters was raised by the mother during the hearing in October 2014. However, at that hearing they were not pressed by the mother as a basis for changing the children’s residence. Indeed, as noted above, in final submissions it was conceded on behalf of the mother by her counsel that it was in the children’s best interests that they continue to live with the father and spend no time with the mother.
With respect to those matters I note:-
·The appointment of the ICL was discharged upon the final orders being made in December 2014. No issue was raised by the mother as to the conduct of the ICL during the course of the proceedings in October 2014;
·Similarly, the children have attended upon Mr M since final orders were made in the Federal Circuit Court in June 2013. The mother’s criticisms of the role of Mr M were raised during the hearing before me in October 2014. The mother did not press those matters at the conclusion of that hearing.
·As noted at paragraphs 103 and 104 of my judgment, during the October 2014 proceedings the mother was critical of the father’s conduct towards her, alleging that he had sought to destroy her relationship with the children. At paragraph 104 I found that there was no evidence to support those allegations; and
·At paragraph 122 of my judgment I noted that there was no challenge to the father’s capacity to care for the children. The mother’s criticisms with respect to D’s progress at school and the children’s presentation since they commenced living with the father in May 2013 are matters that were raised by the mother during the hearing before me in October 2014 but ultimately not pressed by her in circumstances where she conceded on the final day of the hearing that it was in the children’s best interests that they continue to live with the father.
At the commencement of this hearing I informed the mother that I did not have jurisdiction to determine the child support issues raised in her application; those matters are properly dealt with by the Child Support Agency and the Social Security Appeals Tribunal.
The only matters relied upon by the mother in support of her application to change parenting orders that post-date the final orders made by me in December 2014 are as follows:-
·That the mother has relocated to rental accommodation at the rear of the children’s school. At the time of the final hearing, the mother was living with friends at their home in the Suburb F area. Indeed, since the date of the conclusion of the previous Court proceedings in June 2013, the mother had lived a transient lifestyle and had moved between the homes of her friends. Hence, it is submitted by the mother that the fact that she has secured permanent rental accommodation in close proximity to the children’s school is a factor which warrants a re-opening of the proceedings; and
·That the father has filed an application in the Magistrates’ Court of Melbourne seeking an Intervention Order against the mother as a result of her moving her residence to a property adjacent to the children’s school. The mother alleges that the filing of such application is vexatious, malicious and indicative of the father’s character, and further that it is conduct designed to destroy and discredit the mother and remove the mother from the children’s lives.
The mother maintains that she was the children’s primary care-giver until orders were made by the Federal Circuit Court in May 2013, which provided that the children commence living with the father.
The mother also relies on the affidavit of her treating general medical practitioner, Dr L, filed 12 March 2015. That affidavit seeks to review the findings contained in my judgment dated 15 December 2014 and to argue against those findings. Dr L seeks to comment on the children’s health and well-being. At paragraph 5 of her affidavit she deposes as follows:-
[Ms Drewry] is a loving mother (as stated by [Mr I] from interviews with the children) and not a risk to her children. She has been an excellent primary carer right up to the time the children were ordered to be with their father. The children had regular activities, went on visits and stayed at friends’ houses, were loved and cared for by [Ms Drewry]. She has no evidence of risk factors for filicide … and has not threatened to harm the children or abscond with the children.
It is evident from the evidence of Dr L that she continues to be aligned with the mother. Again, she has adopted the role of advocate for the mother’s cause. She provides a critique of my judgment and makes assertions as to the reasons for the mother’s conduct and as to the impact of the mother’s conduct on the children. For example, at paragraph 11 of her affidavit she states:-
[Ms Drewry’s] current need to go back to court is to gain some access and time with her children. Any mother would want a ‘reunion with her children’ in the current circumstances of no contact. It is impossible to see this search for some normal unsupervised contact with her children as needing ‘treatment’, nor is it a ‘delusional belief’ as [Dr H] states in his opinion … Abrupt separation of children from any mother would make that mother unhappy. This is not enmeshment with her children or separation anxiety; rather it is grief and anxiety from loss of contact with her three children. (original emphasis)
Dr L provides no evidence of any change in the mother’s presentation since the matter was last before the Court. The focus of much of her affidavit is on the mother’s needs rather than the needs of the children the subject of these proceedings. The evidence is consistent with that presented to the Court at the time of the final hearing. Further, the evidence of Dr L ignores the concessions made by the mother in October 2014 at the conclusion of the hearing before me - that she considered it in the children’s best interests that she remove herself from the children’s lives.
The father submits that there has been no change of circumstance that would justify a re-litigating of the parenting proceedings.
With respect to the mother’s assertion that her securing rental accommodation close to the children’s school is a change of circumstance, the father submits that such conduct is in fact indicative of the mother’s lack of insight as to the impact of her behaviour upon the children and is an attempt by her to thwart the operation of orders made by me in December 2014.
In support of that submission, the father relies upon emails forwarded to the children by the mother wherein she seeks to inform them of her new residence and its proximity to the school. That communication is made by the mother in the face of the orders made that:-
·the children spend no time with the mother;
·the mother’s ability to communicate with the children be limited to one occasion per month; and
·the mother be restrained from communicating with any school at which the children attend.
The father relies upon the mother’s emails to the children forwarded to him in January and February 2015 in support of that submission. For example, in her email dated 13 February 2015, the mother wrote to the children stating:-
I want you to know that I am living behind the school just near the school back gate. Its [sic] the street corner when you walk to the left of the back school gate …You can call mummy or come to mummy any time. I will be waiting for you with open arms and cant [sic] wait to hug you. I dont [sic] think I will ever want to let you go.
That the mother considered it appropriate to forward such an email to the children in circumstances where final orders were made less than two months earlier which made specific provision that she spend no time with the children is extraordinary. When one considers that the closing submissions of the mother’s counsel included concessions on behalf of the mother that such order was appropriate, the force of the submission as to the inappropriateness of the mother’s conduct in the face of those orders is strengthened.
At paragraphs 15 to 17 of his affidavit filed 19 March 2015, the father deposes that the children have been informed by their classmates and other parents at that school that the mother has a new home near the school. Indeed, at paragraph 16 of that affidavit, the father details the text message received from a mother of another child in the child D’s year level confirming as follows:-
I did tell [D] this morning that [Ms Drewry] has a house near school and that she hopes that the 3 kids will be able to visit soon. Sorry if this has upset the children – not my intention at all.
I am satisfied that the mother’s conduct in establishing a residence in close proximity to the school is not a change of circumstance which would justify the re-opening of the parenting proceedings. Rather, in my view, that conduct is consistent with the observations made by Dr H and Mr I during the course of the hearing before me in October 2014 as to the mother’s lack of insight as to the impact of her behaviour on the children. That the mother has:-
·relocated to that residence;
·written to the children informing them of her move to that residence; and
·informed other parents and children at the school attended by the children of her move to that residence
demonstrates her preparedness to elevate her own need to see the children over and above what she conceded at the final hearing, and I found, to be in the children’s best interests.
I am satisfied that the mother’s actions in establishing that residence and sending emails to the children in the terms noted above were likely calculated to undermine the effect of the orders that she spend no time with the children. Further I am satisfied that those actions have likely upset and traumatised the children who are no doubt still adjusting to the implementation of the orders made at the conclusion of the proceedings in December 2014. I have no doubt that the mother’s conduct, particularly in involving other parents and classmates of the children to inform the children of her new residence, has likely unsettled and confused the children. It is conduct which demonstrates the limited capacity of the mother to appreciate the impact of her behaviour upon the children. It is conduct consistent with that observed of the mother during the proceedings which culminated in the final orders in December 2014.
Accordingly, I am satisfied that the mother’s establishment of a residence in close proximity to the children’s school is not a circumstance which would justify a re-litigating of parenting matters.
The mother further asserts that the father’s application for an intervention order against the mother, in light of the mother’s conduct in securing a residence in close proximity to the school, is vexatious and malicious.
Again, that submission highlights the lack of insight the mother possesses as to the impact of her conduct. In my view, the father was left with little choice but to issue such application in circumstances where it could be said that the mother’s establishment of that residence was provocative and indeed designed to thwart the operation of the orders made in December 2014. I note that the father sought to avoid the institution of those proceedings. Indeed, upon learning of the mother’s establishment of her new residence, he forwarded an email to the mother on 17 February 2015. That email which is annexure CF8 to the father’s affidavit states in part:-
The girls have told me today that [Ms N] and [Ms M] have told them you are living behind the school. That is not something I planned to tell them.
I do not think it is appropriate for you to live so near to the school. I think this is a breach of the spirit of the orders and adds unnecessary complexity to the kids [sic] lives.
While it is possible for me to apply for an Intervention Order against you, I don’t think that solves the problem.
Unfortunately, now the kids know you are living so close to [FPS] I feel I will have no choice but to move them from the school unless you are prepared to find accommodation elsewhere and so, unless you confirm by next Monday that you will not continue to live near the school I will have no alternative but to move them.
If you do agree to move, can you please advise when you will move by?
The children have been through a lot. Please do not force me into [a] position of needing to urgently change their school.
That email highlights the difficult position in which the father was placed in the aftermath of the mother establishing her new residence. It is evident from that email that the father perceived the only options available to the family were:-
·The mother moving to another address;
·The children changing their school only weeks into Term 1 of the new school year; or
·The commencement of intervention order proceedings.
The mother did not respond to the request that she move her residence. The father was placed in an invidious position with respect to the children’s schooling, particularly in circumstances where the parties’ eldest child, B, had been appointed School Captain for 2015. The only other option he considered available to him was to commence intervention order proceedings. That he has elected to commence those proceedings does not in my view provide a basis for re-opening the parenting proceedings. Rather, I am satisfied that in all of the circumstances the father has behaved appropriately and in the children’s best interests.
That view is bolstered when one considers the potential impact of further litigation upon the children. These children were the subject of an application for a change of parenting orders in 2013. Those proceedings were heard over a period of 17 days. As a result of those proceedings, the children commenced living with the father and thereafter have attended therapeutic counselling with Mr M. Since that time, there have been three applications made in respect of the children’s living arrangements.
As a result of those applications, the children have attended upon Mr I, Family Consultant, for the preparation of a Family Report.
The children were the subject of a four-day hearing before me in 2014.
I have no doubt that the protracted proceedings between the parties, which commenced in late-2007, and the obvious involvement of the children in that process (including interviews with the Family Consultant, the exposure of the children to the necessity of supervision in the context of time spent with their mother, as well as the need for the children to have on-going therapeutic counselling) has impacted upon them.
I am also satisfied that the proceedings have likely impacted upon the parenting ability of the father. By their very nature, Court proceedings are stressful and costly. The burden of such litigation must impact upon the children for whom the litigants care. I am satisfied that the children are likely to be so impacted were the parenting issues to be re-opened.
In all of the circumstances, I am satisfied that were the matter to be re-litigated, there is no evidence that would support any significant variation to the current orders. I will therefore make orders to dismiss the mother’s applications.
Application for a Vexatious Proceedings Order
The father is seeking a vexatious proceedings order which prohibits the mother from commencing further proceedings without first obtaining leave of the Court. That order is sought pursuant to s 102QB of the Act. The mother opposes that application.
Vexatious proceedings orders are dealt with under Part XIB of the Act. Section 102QB sets out the statutory basis underlying the making of a vexatious proceeding order. It provides:-
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(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 of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(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.
(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.
Section 102QB(2) gives the Court power to make various types of orders, including orders staying or dismissing all or part of any proceedings, orders prohibiting a person from instituting proceedings or proceedings of a particular type or any other order the Court considers appropriate in relation to a person.
Vexatious proceedings are defined in s 102Q of the Act to include:-
(a)proceedings that are an abuse of process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court without reasonable ground; and
(d)proceedings conducted in a court in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The above list is not exhaustive. The explanatory memorandum of the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (Cth) states as follows:-
202.The definition of vexatious proceedings is an inclusive definition, which lists some examples of various kinds of proceedings which could give rise to a vexatious proceeding order…
Whether or not proceedings are without reasonable grounds is assessed objectively and not from the perspective of the litigant (see Attorney-General v Altaranesi [2013] NSWSC 63). In order to succeed in his application for a vexatious proceedings order, the father must establish that:-
(a)There have been vexatious proceedings instituted or conducted in Australian courts or tribunals by the mother; and
(b)The person, in this case the mother, has frequently instituted or conducted such proceedings.
In seeking that order, the father did not specifically identify the proceedings instituted by the mother which are said to be vexatious proceedings. However, it is evident from the affidavit filed in support of his application that it is his view that the current applications of the mother seeking a change to parenting orders made in December 2014 are vexatious proceedings. It is said by the father that those proceedings have been instituted in this Court without reasonable grounds.
The mother denied that her current applications are an abuse of process. She submitted that her motivation for filing her application was her desire to have time with the children.
For the reasons set out herein with respect to the mothers Initiating Application filed in February 2015 and her Application in a Case filed in March 2015 I am satisfied that there were no reasonable grounds for the commencement of those applications.
There is a striking similarity between the proceedings conducted in the Family Court in 2014 and 2015 and those that were dealt with by the Federal Circuit Court in 2013. The chronology of the proceedings since 2013 informs and assists the determination of the father’s application:-
·In May 2013 the mother’s application in the Federal Circuit Court seeking orders to relocate with the children to Western Australia and to change the children’s names was heard before Judge Turner. Those proceedings were heard over 17 days;
·On 28 May 2013, being the sixteenth day of that hearing, interim orders were made that the children live with the father and the mother’s time with the children be supervised;
·On 20 June 2013 final orders were made by consent by Judge Turner. Those orders provided that the children live with the father and that the mother spend time with the children, such time to be supervised;
·Three months later, on 16 September 2013, the mother filed an Initiating Application in the Federal Circuit Court wherein she sought a discharge of previous parenting orders, orders for shared parental responsibility, and that the children live with her and spend time with the father for specified periods;
·On 14 October 2013 the mother’s Initiating Application filed 16 September 2013 was summarily dismissed by Judge Turner;
·Two months later, on 13 December 2013, the mother filed a further Initiating Application wherein she sought final orders that the children live with her. That application was transferred to the Family Court of Australia and is the proceeding that was heard by me in October 2014 and culminated in final orders and judgment dated 15 December 2014;
·Two months later, on 24 February 2015, the mother filed her current Initiating Application; and
·Her Application in a Case was filed shortly thereafter on 17 March 2015.
These proceedings mirror those heard before Judge Turner in 2013 insofar as less than three months after final orders were made in this Court, the mother has sought to file a fresh parenting application seeking a change to those orders. The mother’s applications filed in the Federal Circuit Court were filed in circumstances where she had consented to the final orders the subject of those applications before Judge Turner; her two applications before me seek to set aside the orders made by me in December 2014 which were not opposed, and where she conceded through her counsel that those orders were in the children’s best interests. As detailed above, I am satisfied that the mother has failed to establish that there has been any change of circumstance to justify a re-opening of the parenting proceedings.
The question as to the meaning of “frequently” in the context of vexatious proceedings orders was considered by Benjamin J in Cannon & Acres [2014] FamCA 104. At paragraph 483 Benjamin J noted the definition applied by Davies J in Attorney General in and for the State of NSW v Gargan (which summarised the principles associated with making an order under the Vexatious Proceedings Act 2008 (NSW) which has provisions almost identical to s 102 QB(1)(a)) as follows:-
(a)the test of frequently is less demanding that the test that was acquired under s 84 Supreme Court Act 1970; the term frequently is a relative term and must be looked at in the context of the litigation being considered;
(b)the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against a person;
(c)regard may be had to applications made by the person in proceedings against that person;
(d)regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;
(e)regard may be had to the proceedings in any Australian court or tribunal;
(f)regard may be had to the findings and results in the proceedings under consideration.
At paragraph 484 Benjamin J noted that that approach was approved and adopted by Barker J in the decision of Fuller v. Toms [2013] FCA 1422 and applied that approach in determining the matters before him. At paragraph 493 Benjamin J stated:
The term “frequently” as a relative term was and is to be considered in the context of the facts of an individual case and in this case, in the context of litigation between these parties.
I agree with the approach of Benjamin J. and adopt it in determining whether the mother’s applications are vexatious proceedings that have been frequently instituted.
I am satisfied that the applications filed by the mother since September 2013, including those filed in February and March this year, were attempts by her to re-litigate the matters concluded upon the making of the final orders by Judge Turner in June 2013 and by me in December 2014. Her applications have largely been framed in identical terms; each application has sought a re-instatement of the mother as primary carer and that the children live with her.
Having regard to the procedural history as from mid-2013, I am satisfied that the mother has frequently instituted proceedings. The question for determination is whether those proceedings are vexatious proceedings.
The father has had to respond to each of the applications filed by the mother since the final orders of 20 June 2013. He has successfully opposed the four applications filed since that time. In doing so, he has had to prepare and file affidavits in the proceedings, he and the children have attended appointments with the Family Consultant and he has appeared at each Court event. There have been no less than eight Court events since that time and the hearing conducted before me in October 2014 spanned four days.
I am satisfied that the mother’s repeated applications to the Federal Circuit Court and this Court since September 2013 have cast a long shadow over the lives of the father and the children the subject of the proceedings.
The mother’s application filed in September 2013 was summarily dismissed by Judge Turner on 14 October 2013. Accordingly, I am satisfied that it was a vexatious proceeding, being an application filed without reasonable grounds.
I have determined that there were no reasonable grounds for the mother’s current applications. I have determined that parts of those applications were misguided and indeed that the mother, in part, sought relief beyond the jurisdiction of this Court. The father has been put to the emotional and financial burden of responding to those applications. In all of the circumstances I am satisfied that the mother’s current applications filed in February 2015 and March 2015 are vexatious proceedings. They are proceedings which have been instituted and pursued in this Court by the mother without any reasonable ground. I am satisfied that to permit these proceedings to continue would be an abuse of the process of this Court.
Given the repetitive nature of the mother’s applications I am satisfied that these current proceedings have been unfairly burdensome on the father.
At paragraph 112 of my Reasons for Judgment I noted Dr H’s views as to the mother’s lack of insight as to the impact of her behaviour on the children. It was his evidence during cross-examination that:
… She has a formed view which over the three assessments that I have seen her remains exactly the same and that is that she is the only one who could possibly look after the children, that the father essentially can’t, and that she is the perfect mother and that she won’t rest until they are back in her care because they will suffer otherwise … she continues to perceive [the father] as a thorn in her side and as has been indicated here that you can never trust him and so on and so forth. So that’s not changed so that whilst I made the diagnosis of an adjustment disorder, the condition is far more severe than that.
The mother’s current applications indicate that, notwithstanding the concessions made by her on the last day of the hearing in October 2014, she maintains the view, as observed by Dr H, that she is the only one capable of caring for the children; were that not the case she would not have sought orders in her current applications for sole parental responsibility and for the children to live with her. Seemingly, the mother’s attitude towards the children and her role in their lives, as observed by Dr H (his evidence having been accepted by me), has not changed. Further having regard to the evidence of Dr H and my findings in relation to that evidence, I am satisfied that the mother’s attitude and approach to the parenting matters is unlikely to change and there is a real prospect that she will continue to file applications seeking parenting orders in pursuit of her goal to be reinstated as the children’s primary carer, irrespective of whether there is any change of circumstance which would justify the filing of such application.
The children the subject of these proceedings have been at the centre of litigation between their parents since late-2007. Since mid-2013, the mother has filed no less than four applications with respect to parenting matters. She has failed in three of those applications and I have granted her leave to withdraw her Contravention Application filed 24 February 2015. I am satisfied that the applications filed by the mother in September 2013, on 24 February 2015 and on 17 March 2015 are vexatious proceedings.
It is a very serious matter to preclude a party from commencing proceedings. However in considering that application by the father, I must balance the right of the mother to make application against the need to protect the father and the children from the impact of further litigation. An order in the terms sought by the father will not preclude the mother from filing applications; rather it will protect the father and the children from the impact of applications filed by the mother which do not have a legitimate basis sufficient to justify the granting of leave to file such application.
Having regard to the history of this matter, and particularly since June 2013, I am satisfied that the time has come for the children the subject of this litigation to be protected from further involvement in Court proceedings. It is likely that they are unable to recall a time in their lives when their parents have not been locked in litigation. They should be afforded the opportunity of living their lives without them having to attend upon Family Consultants for the preparation of reports, to engage with a lawyer appointed to represent them, and to live with a parent who is carrying the burden of preparation for Court hearings.
Accordingly, I will make an order that the mother be restrained from filing further applications under the Act without first having been granted leave by the Court to commence such proceedings. The orders I make are as follows:-
(1)That the mother’s Application in a Case filed 17 March 2015 and Initiating Application filed 24 February 2015 be dismissed.
(2)That pursuant to s 102QB(2)(b) of the Family Law Act1975 (Cth) (“the Act”) the applicant, [Ms Drewry], be prohibited from instituting parenting proceedings with respect to B born … 2003, C born … 2005 and D born … 2006 (“the children”) under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act, save that this vexatious proceeding order does not apply to:-
(a)Any costs application of the mother arising from these orders filed within the time prescribed under the Family Law Rules 2004 (Cth); or
(b)Any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 (Cth) or such other time as is permitted by order of the Full Court.
(3)That the father’s Response to Initiating Application filed 18 March 2015 and Response to Application in a Case filed 19 March 2015 be dismissed.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 30 April 2015.
Associate:
Date: 30 April 2015
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