Harvie & Beale (No 2)
[2023] FedCFamC1F 950
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Harvie & Beale (No 2) [2023] FedCFamC1F 950
File number: MLC 9904 of 2015 Judgment of: MCGUIRE J Date of judgment: 9 November 2023 Catchwords: FAMILY LAW – PARENTING – Mother’s five discrete interlocutory applications listed for hearing on notice to the mother on 30 October 2023 – Where the mother did not give a reason or excuse for her non-attendance at court at the hearing of the interlocutory applications – The hearing proceeded undefended – Orders made dismissing all five applications Legislation: Family Law Act 1975 (Cth) ss 102QB(1), 102QB(2), 101QB(4), 121 and 121(9), Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 30 October 2023 Place: Melbourne, delivered in Launceston Counsel for the Applicant: Ms Damon Solicitor for the Applicant: Higgins Legal Solicitor for the Respondent: Litigant in Person did not participate Counsel for the Independent Children’s Lawyer: Ms Treyvaud Solicitor for the Independent Children’s Lawyer: Macgregor Barristers and Solicitors ORDERS
MLC 9904 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARVIE
Applicant
AND: MS BEALE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The mother’s application filed 28 March 2023 to release the documents listed in her affidavit sworn 16 March 2023 be and is hereby dismissed.
2.The mother’s application for Contempt filed 24 April 2023 be and is hereby dismissed.
3.The mother’s application for a Contravention of Orders filed 29 May 2023 be and is hereby dismissed.
4.The mother’s application filed 13 June 2023 for a Stay of the Orders made 20 April 2023 be and is hereby dismissed.
5.The mother’s application filed 19 June 2023 to have the father declared a vexatious litigant pursuant to s 102QB of the Family Law Act 1975 (Cth) be and is hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Harvie & Beale has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATIONS
The father is the applicant in substantive parenting proceedings in respect of one child, X born 2014 (aged 9 years). The father seeks orders that X live with him which would be a change of “live with” where X has habitually lived primarily with the mother since the parties’ separation.
I have only in September of this year taken carriage of the matter from my colleague Justice Wilson. On any observation, the matter has suffered a frequent and complex interlocutory history.
Where the child’s best interests are my paramount consideration, I have listed the trial of the substantive parenting issues to commence 18 January 2024.
The mother is historically self-represented. The father was represented by solicitor and counsel at hearings before this Court. An Independent Children’s Lawyer (“ICL”) has been appointed and is represented by counsel at hearings. The mother has unsuccessfully made application for the discharge of the ICL’s appointment. A recent Full Court decision confirmed the decision of the Court at first instance to dismiss that application. The mother now flags an application for special leave to the High Court in respect of this issue.
The mother has before the Court five discrete interlocutory applications. At a mention on 16 October 2023, at which the mother did not attend, I determined to list and hear the five applications so as to maintain the trial date of 18 January 2024. In so doing, I rejected applications on that day by counsel for the father for dismissal of the extant interlocutory applications by reason of the mother’s non-appearance. In so doing, I determined that a further 14 days was sufficient notice to the mother of the Court’s intention to hear her applications on 30 October 2013 with one day allocated. Specifically, where mother’s applications included: first, that the father be dealt with for contempt; and another that he be dealt with for contravening court orders, I directed that the parties attend in person on 30 October 2023 in anticipation of cross-examination being required should the mother prosecute the contempt and contravention applications.
The mother did not attend court on 30 October 2023. She gives no reason or excuse for her non-attendance and hence non-compliance with the Court’s direction. The mother did, however, provide some 11 pages of “submissions” received by the Court, and presumably counsel for the father and the ICL, at 9:07am on the morning of the hearing. Those submissions do not address, or adequately address, her non-attendance at the Court.
It should also be noted that the father did not attend in person where his counsel says there was a breakdown in communication of the Court’s orders from solicitor to client. I am told, and accept, that the father would be available on relatively short notice and including, if necessary, by media.
When the matter was called and there being no appearance by the mother, I determined, against the application of counsel, to consider the mother’s written submissions rather than dismissing all of her applications due to her non-appearance at Court pursuant to the Rules of the Federal Circuit and Family Court of Australia. I should emphasise, however, that two of the applications being those for contempt and contravention, require attendance.
I have read and considered the mothers submissions. At [37] the mother submits:
… I humbly seek an Adjournment of this interlocutory matter until the Appeal for Special Leave for the discharge of the Independent Children’s Lawyer is heard and determined for timetabling of the extant applications to allow for updated material to be filed and for submissions to be made so that I can prosecute these applications fairly and put my evidence before the Court.
In so far as this amounts to an application for an adjournment, I determined to hear the application on 30 October 2023. Again, the mother had been put on notice as to the hearing of the applications by my orders of 16 October 2023. The mother is the applicant and her applications date from March, April, May, and June 2023. As such, I am of the view that ample time has been given to her for preparation and where she has indeed filed affidavit material in respect of each of the applications.
The father is the respondent to each of the applications and has a justified expectation that the matters will be heard and disposed of expeditiously. The trial is listed for 18 January 2024 and it is abundantly clear that the Court wishes to dispose of these now long-standing interlocutory applications so that there be no unnecessary delay in the hearing and determination of the trial which, after all, is to attend to the best interests of a child. The mother does not assist the Court in giving any time expectation for the lodging, hearing and determination of her application for Special Leave. I considered all of these matters in determining to proceed in hearing the applications on 30 October 2023. The applications are dealt with separately. Firstly, however, I consider the mother’s written submissions which do not separately address each of the applications. I note the following from the mother’s submissions:
[2]I have maintained the position that all hearings in this matter, including the interlocutory application for the child’s removal, should not proceed while the status of the ICL is under appeal and where no arrangements or safeguards have been put in place to allow me to meaningfully participate. The application to remove the ICL is now under review for a special leave to appeal in the High Court of Australia. Consequently, I urge the Court to suspend any decisions on the interlocutory and extant applications until the High Court renders its verdict. I reiterate that I will abstain from participating in the hearing if it proceeds on 30th October.
[3]If the court nevertheless moves forward with the interlocutory application and rules against the mother, I then request a Stay of the orders. This is to allow me an opportunity to appeal the decision based on, among other things, the following:-
- That the DFFH clearly identifies such an order is harmful to the child and strongly opposes removal based on child safety…
…
Thus, unless a Stay is instituted, the orders will result in certain harm on the child…
…
[4]On 16 October 2023 the court set a hearing date for all existing applications, which was a mere two weeks away. Such a limited timeframe was not only harsh and unreasonable but also impeded my rights as an applicant to procedural fairness …
In order to prosecute these applications, I respectfully reiterate that I require sufficient time to gather, assemble and file further evidence and prepare relevant submissions. …
…
[9]Overriding matters. My submissions are grounded in the overriding duty of the Court to give paramountcy to issues of child safety, to ensure a fair trial, with particular importance placed on procedural fairness, especially in cases where one litigant is self-represented. There is an affirmative duty to assist self-represented litigants and the court’s duty in this regard is compounded where family violence and child safety are significant factors, as in the case. I further note that mandatory statutory obligation exist that requires this Court to make arrangements and to ensure procedural safeguards to minimise trauma and hardship for victims, such as myself.
[Original emphasis]
At paragraph [10] and following the mother details a lengthy history of her allegations of the family violence.
I repeat that I am of the view that the mother has been afforded procedural fairness. She is the applicant. She has filed affidavits in support of her applications. The applications were filed between March and June of this year. The matter was effectively adjourned for two weeks as an indulgence to the mother given her non-appearance on the last court event and against the submissions of counsel.
I deal with the applications as follows:
A. That the Applicant be granted leave to release the documents listed in her affidavit sworn 16 March 2023 to the person/entity/institutions specified in that affidavit
The mother’s supporting affidavit at [22] and following sets out the documents that she seeks leave for release being:
·Reasons for Decision of the Senior Registrar made 15 November 2022;
·Interim orders made 15 November 2022;
·Transcript of proceedings on 24 January 2023;
·Submissions made by the mother on 20 January 2023;
·Affidavit (including exhibits) of the mother sworn 17 January 2023; and
·This Application and supporting affidavits.
The affidavit discloses that the mother asked for the documents to be released to:
·The Attorney-General of the Commonwealth and the Shadow Attorney-General of the Commonwealth;
·The Domestic, Family and Sexual Violence Commissioner;
·The Department of Social Services Minister and the Shadow Minister for Social Services;
·B Organisation;
·The C Institute;
·Multiple journalists;
·Committee of Experts for the Convention on the Rights of the Child (“CRC”);
·Committee of Experts for the Convention of the Elimination of all forms of Discrimination Against Women (“CEDAW”).
The mother’s affidavit at [20] - [21] purports to give rationale to the application as follows:
[20]The foregoing reveals an inherent biased narrative in the family law system that is putting the safety of children and their carers at extreme risk. The legal rules and the entrenched bias of those involved in the system mean that violent partners are able to use the family law system to perpetuate family violence against women and children.
[21]Section 121 of the Family Law Act 1975 has sheltered the decision makers in the administration of the family law system from scrutiny and has facilitated the creation of a warped dysfunctional culture of abuse of process and anomalous results. The availability of review does not provide comfort to those that do not understand the system and/or cannot afford to participate in it.
The mother argues public interest [8] in having the legislature and other relevant entities made aware of the mother’s allegations of the father’s alleged propensity for family violence; where she asserts a particular report writer to have “a reputation of being biased in favour of fathers”; court bias including hostility to the mother; and bias in the ICL.
The mother’s written submissions provided on the morning of the hearing set out her concerns with generality but did not specifically address her application.
The father is opposed to the application for leave to publish the above-mentioned documents. He is supported by the ICL.
Section 121 of the Family Law Act 1975 (Cth) (“the Act”) has as its rationale in prohibitions the ultimate best interests of the child to prevent the identification of the child through identifications of the parties or witnesses which, in my view, specifically attends to the best interests of the child where otherwise the Court is open to persons over the age of 18 years.
Section 121 provides in its restriction on publication of court proceedings as follows:
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
…
(3)Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i)the name, title, pseudonym or alias of the person;
(ii)the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii)the physical description or the style of dress of the person;
(iv)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi)the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii)any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
Section 121(9) provides some exceptions to the general rule as follows:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(aa)the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or
(b)the communication of any pleading, transcript of evidence or other document to:
(i)a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii)persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c)the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d)the publishing of a notice or report in pursuance of the direction of a court; or
(da)the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e)the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i)to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia)to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii)to a person who is a student, in connection with the studies of that person; or
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
It is proper to note that it is entirely proper of the mother in these proceedings to have sought leave of the Court to disseminate material where the restrictions apply. Nevertheless, I am not persuaded that the parties and bodies referenced by the mother as potential recipients of the material come within the exceptions at s 121(9). The mother does not attempt to specifically persuade me otherwise.
Despite any professional interest the anticipated recipients may or may not have (none is specified by the mother), I am of the view that each sits comfortably within the term “section of the public” as referenced in s 121(1). Equally I am easily persuaded that the documents listed by the mother would serve to identify the child and the parties. Importantly, if required to exercise my discretion in the application for leave, is the fact that the mother’s allegations and assertions in respect of the father and his propensity for family violence, and asserted bias on the part of the Court and/or Family Consultant and/or ICL have not yet been tested and remain simply assertions and allegations by the mother. As such, issues of personal defamation may potentially be raised should such material be published, and it eventuates that the mother’s assertions and allegations are not proven on the balance of probabilities.
I have no evidence from any of the intended recipients of any specific academic or other interest in these proceedings. I have no affidavit in support of the mother’s application from any of the intended recipients. I have no application from any of the intended recipients. Again, I do not therefore consider that any of the exceptions under s 121(9) are captured.
Consequently, where I am satisfied that the dissemination of the material as sought by the mother would identify the relevant child and the parties, and where, in my view, the Act in these particular sections serves to maintain the integrity of the proceedings themselves and the anonymity of the child and parties, I am not persuaded that my discretion should be exercised in granting leave to the mother in the broad church she seeks. Consequently, the application will be dismissed.
B. By an application - contempt filed 24 April 2023 the mother seeks that the father be dealt with for contempt alleging that the father directly communicated with the applicant mother via e-mail message in deliberate breach of the injunction in order 14 of the orders of 24 January 2023
Matters of contempt are dealt with at s 112AP of the Act and Rule 11.71 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Suffice to say that an allegation of contempt constitutes an assertion of contravention of an order involving a flagrant challenge to the authority of the Court. The Rules provide for the process to be taken by the Court in hearing an application that a person be dealt with for contempt.
Whilst I note that the father was not in attendance at court and despite my directions, the mother as the applicant also did not attend court. I was told and I accept that the father was available to enter a plea pursuant to Rule 11.71(6) if required. Nevertheless, where the mother was not in attendance to prosecute the application and given the serious nature of an allegation of contempt including the potential ramifications, I determined it not appropriate to take a plea from the father. I consider, therefore, the mother did not prosecute the application where that application was unambiguously listed for hearing on 30 October 2023. As such, I determined to dismiss the application pursuant to Rule 10.26(1)(e) of the Rules.
C. The mother’s contravention application filed 29 May 2023 alleging 18 counts of contravention by the father being 14 in respect of the father’s alleged failure to spend time with the child pursuant to court orders; two counts of alleged denigration of the mother; one count of not using the “communication app”; and one count for not answering a telephone call from the relevant child
Similarly to the mother’s contempt application dealt with above, I determined no plea should be taken from the father despite his non-attendance but where he was available and in circumstances where the mother did not attend the Court to prosecute her application. Given the potential punitive nature of a contravention application, like the contempt application, I take the view that the application should therefore be dismissed pursuant to Rule 10.26(1) of the Rules. In doing so I note that the application dates from May 2023. I note that the mother has filed an affidavit in support of the application. I take into account the general policy of the Court that contravention applications should be disposed of efficiently.
D. The mother’s application in a proceeding filed 13 June 2023 seeking “that the orders made on 20 April 2020 be Stayed pending the hearing and determination of the appeal from decision in the Application for Review of those Orders”
It is clear that the mother’s Stay Application relates to an anticipated appeal from orders of Judge Jenkins dismissing the mother’s Review Application. The Court record shows that no appeal has been lodged. As such, the hearing of the Stay Application is not appropriate. The application will be dismissed. I will order accordingly.
E. Application in a proceeding - filed 19 June 2023 by the mother
By this Application, the mother seeks the following orders:
1.A declaration that the applicant father in proceeding MLC 9904/2015 is a vexatious litigant within the meaning of section 102QB of the Family Law Act 1975 (Cth).
2.An order staying or dismissing all or part of proceeding MLC 9904/2015 and/or the amended initiating application filed on 26 May 2023 instituted by the applicant father.
3.An order prohibiting the applicant father in proceeding MLC 9904/2015 from instituting proceedings and/or applications of any kind under the Family Act 1975 (Cth) in the Federal Circuit and Family Court of Australia.
4.Any other order the Court considers appropriate in relation to the applicant father.
The mother’s application is supported by an affidavit sworn or affirmed on 13 June 2023. That affidavit relevantly states the following:
[4][The father] has always used the threat of making an application to Court to remove the child from me as an instrument of coercion and control and to cause me distress. [The father] has no interest in the child and has never had care of the child or contributed to the child’s care or development in any way. [The father] has never made any financial or any other contribution to the well being of the child.
…
[12][The father] then commenced these applications for the same purpose – to coerce, control and cause harm to the mother and the child.
…
[15]On 16 August 2022 he filed an application in the proceedings, in which he sought amongst other things, the removal of the child from the mother: …
[16]Following multiple hearings, that application was abandoned by the father and was dismissed by [the] Senior Registrar […].
[17]On 26 May 2023, the father filed an amended initiating application in which he seeks both interlocutory and final orders – in similar terms. The father again is seeking the removal of the child from the mother: …
[18]There is a clear pattern of behaviour where the father is repetitively instigating proceedings and is trying to take control during the existing proceedings by applying for the removal of the child in order to cause maximum distress and harm to the mother and the child. In addition, despite various attempts, the father has refused to mediate or negotiate in any way including at the formal Court ordered mediation.
…
[22]It should be noted that [the father] has a pattern and a history of misusing court and other processes to perpetuate family violence.
[23]For instance, [the father] has made repeated false reports to DFFH about the mother and child which have been shown to be totally baseless. All DFFH investigation have assessed [the father] as the perpetrator of FV with the mother and child victims of his behaviours.
[24][The father] has sought to take out repeated IVOs against the mother which have been thrown out by the Magistrate’s Court as baseless and vexatious.
[25][The father] has also made numerous false reports to the Police about the mother and child which have been baseless and had the sole purpose of harassing the mother.
…
[27]The true purpose of the father’s applications are to cause harm to the mother and child and this is further evidenced by his persistent failure to comply with parenting orders resulting in multiple contraventions and contempt proceedings currently before this Court.
I did not read the mother’s written submissions provided on the morning of the listing of this application to directly reference this application otherwise than in its generalities.
Section 102QB(1) of the Act 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
…
Section 102QB(2) provides:
(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.
…
Section 102QB(4) provides:
(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.
I note again that the mother did not attend to prosecute the application. I have, however, considered her affidavit material and her written submissions provided on the morning of the listing, but where again those submissions come only in the form of generalities.
The father is the applicant in the substantive parenting proceedings now listed for trial in January 2024. Whilst the proceedings have had a busy interim and interlocutory history, I understand that the father has filed only one application such amended on 26 May 2023, 29 June 2023 and 21 August 2023. An amended application is not, however, to be confused with a fresh application and where it is not uncommon (and entirely proper) for a party to amend the orders sought in a substantive application as such proceedings travel towards a final hearing.
The court record shows the father filing one interim application seeking a change of residence in the interim for the child. The mother is correct in that the application was dismissed by the Senior Judicial Registrar. I am unaware as to whether or not the application was dismissed after a contested hearing or whether it was not pressed by the father. The distinction matters little in this determination.
Within context, the Court file on my calculations notes some 11 interlocutory or interim applications filed by the mother during the course of these proceedings and including an unsuccessful appeal.
Whilst the mother’s affidavit makes allegations and assertions as to the father’s bona fides and motivations behind his application including that it is filed and prosecuted primarily as a form of coercive violence towards the mother, such allegations and applications remain to be tested at the trial in January 2024. There is no litigious history in this Court by the father to corroborate the mother’s claims. The mother makes general reference to proceedings by the father in the Magistrates Court. I am not apprised of the particulars of those applications and whether or not they proceeded to hearing or were dealt with otherwise?
In all of the circumstances, I am unable to find that the father, in pursuing a parenting application in this Court, is vexatious in his attitude or intent where the mother’s assertions are not tested. The application will be dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 9 November 2023
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