Hanes and Walsingham - [2011] FMCAfam 561

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HANES & WALSINGHAM

[2011] FMCAfam 561

FAMILY LAW – Entrenched long-lasting parenting dispute – orders made in 2009 – both sides seeking variation – Independent Children’s Lawyer seeking order to prohibit further applications save by leave of the Court – consideration of Court’s powers to make such an order.

Family Law Act 1975, ss.60B, 60CA, 66C, 60CC
Federal Magistrates Court Rules 2001, r.13.11

Goode v Goode [2006] FamCA 1346
SZGPS v Minister for Immigration and Citizenship [2008] FMCA 360
SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581

Applicant:

MS HANES

Respondent:

MR WALSINGHAM

File Number:

DGC 2412 of 2007

Judgment of:

Burchardt FM

Hearing date:

12 May 2011

Date of Last Submission:

12 May 2011

Delivered at:

Melbourne

Delivered on:

15 June 2011

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr R. Hoult

Solicitors for the Independent Children’s Lawyer:

McKean Park Lawyers

ORDERS

The current orders made on 16 December 2009 remain in full force and effect.
Neither party be permitted to file any further application without the prior leave of the Court.
Otherwise all extant applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hanes & Walsingham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

DGC 2412 of 2007

MS HANES

Applicant

And

MR WALSINGHAM

Respondent

REASONS FOR JUDGMENT

This case is about whether orders made on 16 December 2009 by Hughes FM should be changed. The orders made by Hughes FM were largely by consent and to the extent that they were not made by consent, it appears from the Court’s file that they were made following oral submissions rather than any testing of the evidence. This is a common procedure where the parties have largely resolved matters but there are a few remaining matters that are still the subject of a dispute.
The father and the Independent Children’s Lawyer seek that the extant orders remain as they are (although the father has waxed and waned as to seeking some minor changes). The mother seeks that the orders be changed relatively substantially to accord with the expressed wishes of the two children with whom the case is concerned, namely [X], born [in] 1996, and [Y], born [in] 2000.
Additionally, the Independent Children’s Lawyer seeks that the parties in the future be restricted from filing any further applications save by leave of the Court.
For the reasons that follow, I am going to leave the orders as they are, and I will make the additional order sought by the Independent Children’s Lawyer.

Some procedural history

The files disclosing the all too numerous and long lasting cases between these two unfortunate litigants go back to 2004 and fill two complete boxes. They disclose an un-ending pattern of proceedings. It may even be the case, as the mother asserts, that there are other antecedent files that I have not seen.
Since the orders (which were of course final orders) were made by Hughes FM on 16 December 2009, 38 items have been added to the

19 that have previously been filed in this particular tranche of litigation. An Independent Children’s Lawyer has had to be appointed and there have been psychiatric examinations of both the parties, and a family report prepared.
During this period, there have also been two contravention findings made against the mother, the first by Hughes FM and the second by me. It is clear on any view that these parties have in the past and continue to consume very substantial Court resources in airing their ongoing dispute.
I have mentioned the contravention matter that was heard by me. I dealt with the matter on 8 October 2010 and sustained some of the contravention allegations made and dismissed others. It is fair to say, as the mother does in her material, that in relation to some of those that were established, I preferred the evidence of the father to that of the mother. No application has been made by either party arising out of the findings that I made and it is, therefore, not necessary to deal with that aspect of the matter further.

The parties’ positions

I have outlined the parties’ positions above. The only matters that require further elaboration are some additional proposals put forward by the mother. Not only does she propose that the current orders be changed so that the children spend every third weekend with the father (and further weekends should they so request up to a maximum of five out of eight weekends) but she proposes that the children be collected by the father from the conclusion of school on Fridays and returned on Monday mornings. She also seeks that all changeover arrangements during school holidays take place at the police station near [omitted] because of the intervention order the father has taken out against her. She suggests unlimited telephone contact between the father and the children but that the father be the one to initiate it because of the difficulties that have obtained in the past about telephone time.
The mother has also sought a change to the regime of half school holidays. Her position appeared to change from time to time during the currency of the proceeding but if I understood the matter correctly her final proposal was that the children spend not half the school holidays but such amount of time as they may wish.

The evidence before the Court

It is appropriate to commence with the reports made by Dr K on each of the mother and the father, because they provide objective insight and also because, for reasons which I will come to, Dr K’s reports so clearly coincide with my own views and findings following seeing the parties in the witness box.
In his report on the mother dated 15 February 2011, on page 6, under the heading “Summary”, Dr K wrote:
“In overall terms, she is a woman of determined temperament, who has some significant obsessive characteristics, and a rigid temperament. She is someone who has entrenched views, and claims to feel herself hounded, and fearful of her ex husband. She sees the situation as that she has been persecuted, and there are some raised paranoid feelings. As well, there are some mild adjustment difficulties as she tries to cope with the situation, with some mild anxiety and depression.”
On the following page of the report at paragraph 9, Dr K continued:
“She appears to be someone who is devoted to her daughters, and gave me the impression that she makes an appropriate custodial parent. Unfortunately, whilst I have not yet seen the father, I gained the impression that both have entrenched views about what is appropriate for the children. A court will hear the totality of the evidence, and be able to decide on those issues. She and the father of the children have been locked together in frequent, and extensive, litigation through the courts.”
In his report on the father dated 28 February 2011 (page 5, paragraph 6), Dr K stated inter alia:
“It appears that both he and his wife are locked in an entrenched battle, and are both determined not to be bested no matter how often court hearings take place. It is hard to recommend an immediately effective pathway.
I am doubtful that parental education would be effective in this matter, although a court may wish for both parties to undergo some additional parental education. Given the length of time, and the extent of the court hearings that has gone on between them, I am quite doubtful that it will prove of any real use.”
On the following page at paragraph 11, Dr K continued:
“It appears that he and his ex wife are locked in an entrenched battle over years, both seeing only their own viewpoint. In these circumstances, it is unlikely that much can be done to alter the situation. Only the passage of time, with the children becoming, at some point, independent, will solve the issues.”
Dr K went on to say that the father was someone quite appropriate to have unsupervised access to his children, as the Court might decide, and that there will need to be a continued effort to make sure that changeover points are as free of difficulties as possible.
The parties’ materials are in large part, I regret to say, a litany of mutual incrimination and self‑exculpation. The mother’s application filed 6 October 2010 states under Part F:
“There will be eight more years of ongoing litigation from

Mr Walsingham toward me, his ex wife –“
and refers to the fact that there has been litigation since 2004. The application seeks that the father spend time from the conclusion of school on Friday until 5:00 pm on Sunday, with changeover

[at omitted], and a variety of other orders including that the father be restrained from stalking the mother. The affidavit in support filed by the mother largely relates to historical matters that preceded the orders made in 2009. She did, however, refer to an incident in August 2010 at the children’s school and she annexed correspondence ostensibly from both [Y] and [X] in which they said they did not wish to see their father.
The response filed by the father inter alia sought that the mother be declared a vexatious litigant. Like the mother’s affidavit material, the father’s affidavit filed on 7 October 2010 was largely a recitation of the prior extensive history of litigation.
The father, in a further affidavit filed on 3 December 2010, raised a

Rice v Asplund
point.
On 17 February 2011, the mother filed a further affidavit. In the first paragraph of the affidavit she said:
“I am the applicant in these proceedings. I am confused how I became the applicant.”
That is a curious observation given that it is clear beyond doubt why she is the applicant. She filed the initiating application on 6 October 2010. The contravention applications by the father make no difference to that proposition.
Once again, the mother’s affidavit material was in very large part historical. By way of example, she refers to the father testing positive for cannabinoids in 1996. She accused him of vexatiously engaging the services of solicitors in order to deny them to her. She accused the father of using an organisation known as “Dads In Distress” to cause her to be stalked. She referred to contravention orders being made against her when she had not contravened the relevant orders. She accused the father of giving $130,000 to his parents so that he could retain the disability pension and not pay child support.
I have detailed these matters not in an endeavour to set out in a compendious way the parties’ affidavits but rather to give the flavour of the obsession with past events that so afflicts both the parties and the vivid and palpable dislike and distaste that obtains between them.
The only other aspect of the affidavit evidence to which I think it is necessary to refer is the assertion in the mother’s affidavit filed on

9 May 2011 that the children want to spend every third weekend with their father. It was in this affidavit that the mother refined her position for weekends to extend into Monday mornings and expressed her desire to have changeover at the police station in [omitted].
A Court counsellor, Ms W, has prepared a family report dated

22 February 2010. I refer to the entirety of that report to which I have had careful regard. At paragraph 21, Ms W recorded that Ms Hanes perceives herself and her children as victims both of Mr Walsingham and the Court system. At paragraph 22 she continued:
“Ms Hanes’ response to the Family Consultant when asked how the children were and whether they had enjoyed their time with their father over the Christmas holidays, sums up Ms Hanes’ attitude to the dispute between herself and Mr Walsingham as well as the impact that her views inevitably have on the children.

Ms Hanes stated, “They have accepted it. You just accept the situation. They accept their childhood has been stolen, that their father will put their mother in jail.” Ms Hanes then proceeded with a litany of complaints regarding Mr Walsingham and his mother, relating to his alleged sleep apnoea, his weight, his alleged involvement with Dads In Distress and the hundreds of people he has to choose from in order to constantly stalk her. She then offered the view that “It is guaranteed the kids will have nothing to do with him soon. Who would?”
Having dealt with the issue of videos of alleged stalkers made by the mother, Ms W went on at paragraph 23:
“Whilst feeling unable to question their mother’s perception of the situation, the girls experienced substantial difficulty in accommodating this information with the concept of a father with whom they no doubt have issues, but who they love and with whom they also have considerable pleasure. Ms Hanes shows no apparent insight into the dilemma her views pose for them, being utterly insistent that the children feel free and able to express their views, to her, both positive and negative, about

Mr Walsingham in her presence.”
I refer to, but do not set out in full, all of paragraphs 24 to 26 of

Ms W’s report, and she concluded at paragraph 26:
“Above all it is Ms Hanes’ view that the children are old enough to decide how much time they spend with each parent. She denies that this would be problematic because of the pressures that this decision making would put on them. Her mode of resolution of the problem in dispute is that [X] and [Y] see their father for three weekends per two months and with the option of two extra weekends in that time if they wish and that

Mr Walsingham can call and text the girls on their mobiles.”
Ms W then turned to Mr Walsingham. At paragraph 28 she said:
“Mr Walsingham describes himself and the children as having a great time, when he does have them with him, engaging in Surf Life Saving, which is both a physical pursuit and a contribution to society, visiting friends and enjoying the small business they are engaged in which nets them pocket money each week and teaches them organisational skills and responsibility. He states, “In my house we have rules and we have fun”, a view that [X] and [Y] confirmed to the family consultant.”
At paragraph 34, Ms W concluded:
“Mr Walsingham is a lively, sociable individual whose involvement with the children is that of an active, stimulating parent. Whilst at times [X] and [Y] may find his weight and appearance embarrassing, it is evident from observing them with Mr Walsingham that they want and benefit from an ongoing relationship despite their loyalty to their mother.”
At paragraph 38, Ms W recorded the children’s views in these terms:
“Despite making clear to [X] and [Y] that the final decision would be made by the Court, both girls wanted to speak of the structure of the contact they should have with their father. The baseline of their views was that they enjoyed their time with their father, they wanted to see him, but they wanted to see him in a way that fitted with their social lives and other commitments.”
Ms W continued at paragraph 41:
“It is evident from what [X] and [Y] say that they do want substantial time with their father. They are adamant they want control over the times they spend with each parent on weekends and that they have the strength to ensure that the plans they make with each parent would be accepted. It is also evident that they are distressed enough at the moment to do anything they can to get themselves and their parents out of the Court system.”
Under her heading “Evaluation”, Ms W said at paragraph 46:
“Over these years, what could be termed as alienation by their mother appears to have been constant. It is unclear whether this has been a deliberate act on Ms Hanes’ part or as a consequence of a mental illness. Either way, it is clear that despite some concerns about Mr Walsingham, the children still, in the face of this, enjoy their time with their father, benefit from knowing him and are able to express a continuing desire to spend time with him.”
At paragraph 49, Ms W concluded:
“It would therefore seem that the only realistic option, despite the girls’ views, is for the continuation of alternate weekends with the flexibility that Mr Walsingham is happy to offer, allowing the children to advise him of special events that they wish to involve themselves with and accommodating this during their time with him. However, rather than their using their mother’s home for a base when involved with these events, there should be acknowledgement that if it is the children’s weekend with their father, if practical Mr Walsingham can take on the associated parenting chores with that or, if the distance is too great, then the children could spend the rest of the weekend of the event with Mr Walsingham rather than having a “makeup” weekend which, historically, has rarely eventuated.”
I note that in her recommendations, which were essentially to the effect that the existing orders remain, Ms W also recommended “that litigation between Mr Walsingham and Ms Hanes be kept to a minimum and that there be serious thought to the impact of this on [X] and [Y]”.

The oral evidence

Ms Hanes’ evidence was that the current orders are not working. She pointed out that the orders were made one and a half years ago and it was for this reason that she wished to change the orders in the fashion I have described.
Under cross-examination by Mr Walsingham, much of which was to do with historical matters and is, in my view, of no relevance given the orders made in 2009, Ms Hanes denied saying to Ms W the matters about the father I have recorded.
When cross-examined by counsel for the Independent Children’s Lawyer, the mother initially refused to answer when asked what benefits might obtain to the children from seeing their father. I had to compel her to do so.
She further asserted that it was not for the father to make decisions about what the children do when they are in his care, although it has emerged clearly enough from the evidence that to an extent at least she, herself, makes decisions about what the children do when they are in her care.
The mother was extremely critical of the father for being 50 and still living with his parents and repeated that the children should choose how much of the school holidays they spend with him.
The mother repeated complaints set out in her materials as to the father’s failure to pay child support and said on more than one occasion that he pays her, effectively, almost nothing by way of child support or for school expenses and the like.
When he was called, the father said no changes had occurred sufficient to justify the orders the mother seeks. He confirmed that his parents are elderly and that his father is 70 per cent blind.
Under cross-examination by Ms Hanes, he confirmed that he still lives in a bungalow at the back of his parent’s house. When questioned as to whether he had given $130,000 to his parents, that then rapidly descended into a domestic dispute. The father denied that he had had any such amounts available to him because the mother had obtained most of the property settlement, and these matters were being bickered about until I moved them on.
Some of the assertions made to the father were, frankly, somewhat absurd. It was put that he had dyed his hair to avoid drugs tests in circumstances where there has been no application for him to be tested in any event.
He was also cross-examined about correspondence he had sent to the mother on 7 June 2009 and 27 July 2009. This correspondence was not tendered but is probably annexed to earlier affidavits. It suffices to say that the tenor of Mr Walsingham’s correspondence on these occasions, at least, struck me as being entirely reasonable.
The father denied a number of other allegations of outrageous conduct such as gouging a child’s new shoe for no particular reason and confirmed that the children hang up on him in mid speech, a matter that suggests at least to him that it is the mother who hangs up the phone.

Tellingly, in answer to a question from Ms Hanes he said words to the effect, “It’s your inability to relate to me, not me to you.”
It is sufficient to interpolate at this point that everything that the parties said and did in Court only goes to show how accurate Dr K’s observations earlier set out about the parties really are.
Under cross-examination by counsel for the Independent Children’s Lawyer, the father confirmed that taking the children to school on a Monday would involve a drive of some two hours or more, an assertion I accept.
Ms W was called and was cross-examined quite extensively by

Ms Hanes. It is sufficient perhaps to say that Ms W stood by the terms of her report. She confirmed that the mother had said, “How could anyone wish to spend time with him? Because he is overweight and embarrassing.” She confirmed that there was hostility on both sides and that the girls were caught in the middle. She said that the children love both parents and that the decision as to how much time they spend with their father needs to be someone else’s and not theirs. She confirmed that the “dream” referred to at paragraph 43 of her report was for the children to have the proceedings finished and to have a relationship with both parents.

Conclusions on the evidence

Neither the mother nor the father were impressive witnesses. They are plainly locked in an un-ending battle and I accept the view of

Dr K that both are determined not to be bested by the other.
The mother’s evidence was, however, characterised at times almost, hysterical assertions about the father. The suggestion that he had deliberately gouged a new shoe of one of his daughters, I am afraid, struck me as ridiculous.
Other aspects of the mother’s evidence were also somewhat disconcerting. She referred on several occasions during her evidence and submissions to the difficulties she has had as a result of being over six foot tall. At one point in submissions she said, “It’s not my fault, I’m six foot, one.” Nobody has said anything in the case about the mother’s height and I had to reassure her that it was a matter of no moment. The observations of Dr K as to the mother’s strong-willed and obsessive personality were wholly reinforced by her demeanour in Court.
It is clear that the mother regards herself as being victimised by the Court and amongst other things said words to the effect that, “I’m sick of being told what I think”.
Unfortunately, what the mother says she thinks does not correspond with the evidence. Contrary to her denials, it is clear that she loathes the father. She simply cannot stand him. She despises him on every front. She says he looks embarrassing. She criticises his hair. She criticises his weight. As earlier indicated, she engages in a litany of complaints.
Only she will know whether she is deliberately seeking to alienate the children from their father, but I have no hesitation whatever in the face of the materials as a whole and the mother’s presentation in Court (what she said and the way that she said it), that she is indeed doing so.
That does not mean that I am persuaded wholly favourably to the father. While he says he only comes to Court to ensure that Court orders are complied with, the history of the dispute between the parties shows that his approach to Court orders is extremely dogmatic and has an unsatisfactory obsession with compliance to the max. I have no doubt that his ideas about the mother are in truth every bit as entrenched as hers are of him. He is also, at least in part, responsible for the appalling situation that the parties find themselves in and the extraordinary difficulties they seem to feel it appropriate to visit upon their children.

The application of the law

It is appropriate to commence by paraphrasing the submissions of counsel for the Independent Children’s Lawyer. Mr Hoult submitted that the litigation has been underway for eight years and there is no hope that the underlying dispute will resolve. He submitted that it was undesirable that the children make the decisions and observed that the children’s wishes are, pursuant to s.66C of the Family Law Act 1975 (“the Act”), a secondary consideration.
Counsel submitted that the children should see the father regularly and that the time they spend should be structured. He submitted that there is no evidence to justify changing the existing orders and that the father should be left to sort out what occurs on his weekends so far as any special occasions for the children are concerned. He submitted that returning the children on Mondays would be inappropriate and I accept that submission.
Counsel submitted that neither side would promote the relationship with the other and that their capacity to parent is simply “not there”. He submitted that the children’s emotional development was not being properly addressed.
Counsel pointed out that this was a case in which there was work for the doctrine in Rice v Asplund to do. He correctly submitted that [Y] is younger now than [X] was in 2009. He submitted that this continuing litigation is contrary to the children’s best interests and that both parties are vexatious litigants who should be stopped. He sought that no further applications to the Court be permitted without leave of the Court.
As will be seen, I accept the force and validity of each and every one of those submissions.
In Goode v Goode [2006] FamCA 1346 at [65] the Full Court of the Family Court summarised the effect of the legislation. I follow the pathway therein indicated.
This is a case in which nobody has sought to change the existing order for joint parental responsibility. No-one has suggested that the conditions identified in s.61DA(1) or (2) are triggered nor has anyone suggested that the presumption is to be rebutted as being in conflict with the best interests of the children pursuant to s.61DA(4).
When the presumption is applied, as it is here, the first thing the Court must do is consider making an order if it is consistent with the best interests of the children and reasonably practicable for the children to spend equal time with each of the parents.
This is plainly not the case here. Neither side seeks it and it is plainly impracticable.
The Court is then required to consider if it is consistent with the best interests of the children and reasonably practicable for the children to spend substantial and significant time with each of the parents. The difficulty here is that whichever proposal I adopt, because of the practical issues between the parties it will not constitute substantial and significant time. Nobody has suggested that the Court should make an order providing for substantial and significant time within the meaning of the legislation. Rather, the debate has raged around the issues as I have described them, in particular the periodicity and length of time of the weekend visits that the children are to spend with their father.
As the Court pointed out in subparagraphs (8) and (9) of paragraph 65 in Goode v Goode, where equal time and substantial and significant time is not applied, then “the issue is at large and to be determined in accordance with the child’s best interests”.
Those best interests are ascertained by consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.
In the context of this case, it is not necessary to refer to the objects in s.60B or the primary considerations in s.60CC(1) in any detail. It is, however, important to remember that pursuant to s.60CA in considering making particular parenting orders, the Court is required to regard the best interests of the children as the paramount consideration.
So far as s.60CC(2) is concerned, all parties ostensibly agree that it is to the benefit of the children to have a meaningful relationship with each of their parents. For the reasons I have already described, I doubt that either parent really thinks this about the other, but that is their ostensible position.
The need to protect the children from psychological harm (s.60CC(2)(b)) is in my view engaged in this case. Ms W’s recommendations flow from the finding by her that it is in the children’s their best interests that somebody else make the decision about the amount of time they spend with their father. Ms W’s evidence was given with conviction and was given in her area of expertise. She was not swayed one iota by cross-examination and I accept her report and evidence in its entirety.
Turning to s.60CC(3), I make the following observations.
The children have expressed clear views to Ms W. They are 15 and 11 years old and their views plainly are not those of tiny, immature children, although [Y] is still young. Nonetheless, it is correct to describe them, as counsel for the Independent Children’s Lawyer does, as an additional consideration. Furthermore, it is impossible to avoid the conclusion that the mother relentlessly exposes the children to criticism of the father and in particular has plainly concerned them very deeply about the prospect that she may be sent to jail for contravention. These are plainly relevant matters in deciding what weight the children’s views should be granted. Likewise, the view of Ms W that it was in their best interests for someone else to make the decision is equally obviously a matter of great weight (s.60CC(3)(a)).
The children have loving relationships with each of their parents. Their relationships with the father’s parents seem more opaque. It does appear that [Y] has reported being struck by their paternal grandmother despite the father’s denials that this could have taken place. Noting that [X] is over six foot tall and that [Y] is already 11, the capacity of the paternal grandmother to inflict physical violence on the children must be open to question. More to the point, the children still want to see their father at his parents’ home at least every third weekend. One approaches any reservations the children have about their grandparents and/or indeed their father with this qualification well in mind (s.60CC(3)(b)).
Neither parent has much willingness and still less ability to facilitate a close and continuing relationship with the other parent (s.60CC(3)(c)).
The orders I propose to make will not impose any change upon the children’s circumstances (s.60CC(3)(d)).
There are real practical difficulties both in terms of distance and expense of the children spending any more time with their father than they presently do. Nonetheless, the extant arrangements have been in place for over a year and a half and apparently, subject to matters of contravention, have been able to be complied with (s.60CC(3)(e)).
While each of these parents is able to look after the children while they are in their care, I accept the submissions of the Independent Children’s Lawyer that the capacity of each of these parents to meet the emotional needs of the children is seriously compromised and flawed by their obsession with the other parent (s.60CC(3)(f)).
Unfortunately, while the children are maturing and in the circumstances doing as well if not better than might be expected, both of the parents have what I would characterise as an immature incapacity to deal with one another as adults and to put the children’s interests ahead of their own emotions. For the reasons expressed by

Dr K and Ms W, one can have little optimism in this regard for the future (s.60CC(3)(g)).
Section 60CC(3)(h) is not relevant.
Both the parents love their children, but their attitude to the responsibilities of parenthood are flawed for the reasons I have already expressed above (s.60CC(3)(i)).
Although there is some suggestion of family violence by the paternal grandmother, there is nothing alleged against either of the parents and I have already dealt with the grandmother above (s.60CC(3)(j)).
There appears to be an intervention order in force obtained by the father against the mother. Exhibits have been provided which constitute a CD of the proceeding before the Magistrates Court together with what purports to be a transcript. I have listened to the CD of the first four pages of the transcript and with one or two minor errors, it is clearly substantially correct. I did not think it was useful or necessary to listen to the rest of it. That is because the intervention order was plainly made on an ex parte basis and in the circumstances, I do not regard that exhibit as being of any great assistance (s.60CC(3)(k)).
The orders I propose to make will be least likely to lead to the institution of further proceedings. That is not because I think that the precise form of orders made as to the parenting orders is more or less likely to provoke further litigation. Unless restrained, these parties will litigate until the youngest child reaches 18 in any event. The reason that the orders I will make are less likely to lead to further litigation is because I propose to make the order limiting further applications that the Independent Children’s Lawyer has sought (s.60CC(3)(l)).
The only other relevant circumstance is the question of the restriction of further proceedings.

The application to restrain further applications

Counsel for the Independent Children’s Lawyer did not seek an order that the parties be declared vexatious litigants pursuant to r.13.11 of the Federal Magistrates Court Rules 2001. Rather, what he sought was an order that the Court simply generally limit the parties from issuing any proceeding without the Court’s leave.
Counsel submitted that such an order was in the best interests of the children and I accept that submission. Nonetheless, counsel did not identify the head of power under which such an order might be made.
The father had originally sought in his response that the mother be declared a vexatious litigant and it was implicit in the positions of both the mother and the father that the Court should conclude that the other was indeed vexatious in their conduct of the proceedings both in this instance and previously.
The Court’s powers in this regard have, however, been considered in previous cases. In SZGPS v Minister for Immigration and Citizenship [2008] FMCA 360, Cameron FM considered the matter at [12] and following. In that case his Honour recognised at [14] that:
“In reality, it seeks an order in the nature of a vexatious litigant declaration, without actually seeking such an order.”
His honour went on to refer to the decision of Jacobson J in SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581, where his Honour did find that such an order was within the Court’s powers. At [18], Cameron FM said:
“As an adjunct to the power found in s.15 of the Federal Magistrates Act 1999, I note that pursuant to r.1.03 the Court may dispense with the rules in whole or in part, dispense with compliance with the rules in whole or in part or give directions or make orders inconsistent with the rules. Consequently, the fact that the rules provide specifically for how to deal with vexatious litigants does not in my view prevent the Court from making an order of the nature sought by the first respondent.
As Jacobson J said, the Court has power under s.15 to make orders in relation to matters which it has jurisdiction. The question is whether the Court has jurisdiction given that it has the same original jurisdiction in relation to decisions as the High Court has under s.75(5) of the Constitution: s.476(1) of the Act. In light of what Jacobson J held in SZDCJ’s case, I must with some hesitation conclude that it does, although I find it difficult to accept that someone shall be excluded from access to the Court without having been found to be a vexatious litigant.
The requirements for the determination of whether somebody is a vexatious litigant can be identified by reference to the rules and the body of authority which has built up in respect of similar provisions in other courts. The authorities provide no real guidance as to what matters might be considered when exercising the discretion which the Court would appear to have to prevent a person, who has not been found to be a vexatious litigant, from commencing proceedings in the Court.
I am of the view that if the Court is to exercise its power to prevent a person from bringing proceedings in the Court in circumstances where that person has not been declared to be a vexatious litigant, it should be exercised in circumstances where vexatious proceedings have already been brought on an issue already finally decided by the Court. Secondly, there should be reason to believe that future proceedings of a vexatious nature dealing with the same matter or matters will be brought.
Thirdly, if the criteria are satisfied I am of the view that any order that the Court might make should be limited to preventing proceedings which do no more than re-agitate a matter which has already been finally disposed of.”
His Honour went on to make the orders sought in that case.
The decision of Jacobson J in SZDCJ dealt in terms with the issue “whether the Magistrate had power to make order 2, namely that no further application to review the decision of the Refugee Review Tribunal be accepted for filing except with the leave of the Court.” (See SZDCJ at [20]).
At [21] – [29], his Honour dealt with this issue in terms. I refer to and incorporate by reference all of those paragraphs, but it is only necessary to note that at [29], his Honour said, “It follows, in my view, that the Federal Magistrates Court does have power to make an order in terms of order 2.”
It should be noted that both SZDCJ and SZGPS were migration law decisions. Of their nature, the sort of repetitive applications that arise in such proceedings are different to those in this case. In this case, we are concerned with family law matters and in particular, parenting issues. In this case, the Court is required by s.60CA to regard the children’s best interests as the paramount consideration.
I was at first concerned as to whether an order of this sort under consideration was a parenting order within the meaning of s.64B. Pursuant to s.64B(2), a parenting order may deal with:
“(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)     a child to whom the order relates; or
(ii)    the parties to the proceedings in which the order is made;
(h) Not relevant
(i)       any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.”
I do not think it is taking matters too far to say that either of those subsections of the Act is sufficient to bring the orders sought by the Independent Children’s Lawyer within the meaning of parenting order. Once that is done, plainly the best interests of the children are the paramount consideration and in the circumstances of this case where, absent further control, the children will be subjected to more and more Court applications with all the associated trauma already noted by
Ms W, it is clearly desirable that I make the orders sought.
Even if I am wrong in this construction of the legislation, in the context of my general power to make such an order as determined by Jacobson J, I would in the context of this family law case regard it as appropriate to make the order in any event. Cameron FM’s orders plainly did not contemplate the kind of circumstances that have arisen in this case and while I would, with respect, agree with his Honour’s observations insofar as they went in the case which was before him, they simply do not govern the circumstances of this dispute.

Conclusion

For the reasons described, it is plainly in the children’s best interests that the Court make a final and conclusive determination of the regime that is to apply. I fully accept the submissions of the Independent Children’s Lawyer. There is no possible way in which the Court could form a conclusion that the alterations sought by the mother are in the children’s best interests. What is clearly in the children’s best interests is that the current orders be reaffirmed and in strong terms by the Court as being in the children’s best interests.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 15 June 2011