KRAWIEC & HAYKAL - [2016] FamCA 104

FAMILY COURT OF AUSTRALIA

KRAWIEC & HAYKAL

[2016] FamCA 104

FAMILY LAW – CHILDREN – Best interests – Parental responsibility – With whom a child spends time – With whom a child communicates – Where there is one subject child who is 13 years of age – Where the mother has been the primary carer of the child since separation – Where there is longstanding, ongoing hostility and conflict between the parents – Where it is more probable that not that both parents have engaged in family violence – Where there is no possibility of the parents being able to make any joint decisions about any aspect of the child’s care or welfare – Where it is not in the best interests of the child for the parents to have equal shared parental responsibility –Where the mother does not have the capacity to be able to support a relationship between the father and the child – Where the father has not participated in family therapy – Where the child is reasonably mature and has clearly expressed that she does not want to spend time with the father – Where the Court is of the view that the appropriate arrangement coincides with the child’s wishes – Orders made for the child to live with the mother and for the mother to have sole parental responsibility for the child – Orders made for the child to spend time with and communicate with the father in accordance with her wishes – Orders made restraining the father from attempting to arrange any time with the child.

FAMILY LAW – CHILDREN – COSTS – Where the ICL seeks an order that the mother pay one half of their costs in these proceedings – Where the father has been granted a waiver of his one half of the costs of the ICL – Where the court is of the view that it is not just within the meaning of s 117(2) to make an order for costs against the mother in favour of the ICL – Where the mother seeks an order that the father pay her costs – Where the father already owes substantial costs that the mother has not been able to recover – Order made that the father pay part of her costs.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for a vexatious proceedings order in relation to parenting matters pursuant to s 102QB(2) – Where a vexatious proceedings order had been made against the father in respect of financial matters – Application dismissed.

Family Law Act 1975 (Cth) – ss 4AB, 60B, 60CC, 61B, 61DA, 65DAA, 102Q(1), 102QB(2), 117(2)

Goode and Goode (2006) FLC 93-286
Haykal & Krawiec (No 2) [2015] FamCA 266
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Ms Krawiec

RESPONDENT:

Mr Haykal

INDEPENDENT CHILDREN’S LAWYER:

KD Holmes

FILE NUMBER:

SYC

731

2009

DATE DELIVERED:

26 February 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

10 & 11 August 2015

REPRESENTATION

FOR THE APPLICANT:

Ms Krawiec in person

FOR THE RESPONDENT:

Mr Haykal in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Holmes of KD Holmes

Orders

The following parenting orders are made in relation to N born on … 2002 (“the child”).
All previous parenting orders are discharged.

Parental Responsibility

The mother shall have sole parental responsibility for the child.
The mother shall inform the father by email of all major long term decisions about the child within 7 days of making the decision.

Live with

The child shall live with her mother.

Spend time

The child shall spend time with her father in accordance with her wishes and at such times and places as the child communicates to her father.
The father is restrained from attempting to arrange any time with the child directly or with any member of the child’s family including her mother.

Communication

The child is at liberty to telephone or email her father at any time.
The mother shall ensure that the father’s telephone number and email address are kept in a place in her home which is accessible by the child.
The father may communicate with the child by way of sending her letters, cards and gifts. For the purpose of this order:
a.The father is to post such written communication to the mother’s business premises but shall not attend personally at those premises to deliver the item;
b.The frequency of those communications shall be no more than one per calendar month;
c.The mother shall ensure that all cards, letters and gifts are delivered personally to N.
The father is otherwise restrained from contacting the child.

School

The father shall not attend at the child’s school, home or work premises (including the mother’s business premises) except by invitation from the child.
Until the child attains 16 years of age, the mother shall provide the father with copies of the child’s school reports by email. The mother shall provide details of the father to N’s school and request that these be entered into N’s enrolment records. Upon the child attaining 16 years of age she may determine whether or not her father is to continue to receive information regarding her schooling.

Overseas travel

The mother is permitted to collect the child’s Australian Passport currently held by the Sydney Registry of this Court within five days of the date of these orders and retain such passport in her possession.
The mother is permitted to travel overseas with the child.
The mother is permitted to renew the child’s Australian passport without the father’s signature.

Counselling

The child is permitted to re-engage with Dr D.

Vexatious proceedings order

The mother’s application for a vexatious proceedings order pursuant to s 102QB(2) of the Family Law Act 1975 to the effect that the father be prohibited from instituting any further parenting proceedings in a court having jurisdiction under the Act be dismissed.

Costs

The Independent Children’s Lawyer’s application for an order that the mother pay one half of its costs be dismissed.
That the father pay to the mother her costs of the proceedings before Johnston J on 25 July 2014 in an amount as agreed, or failing agreement as assessed.
That otherwise the mother’s application for an order that the father pay her costs be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Krawiec & Haykal 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 SYDNEY

FILE NUMBER: SYC 731 of 2009

Ms Krawiec

Applicant

And

Mr Haykal

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Krawiec (“the mother”) and Mr Haykal (“the father”) have been engaged in a most extensive amount of litigation in this and other courts over many years.
On 11 February 2011 Federal Magistrate Walker, as she was then known, made final parenting orders in relation to the parties’ children S born in 1997 and N born in 2002. At that time S was estranged from his father and the orders provided for S to spend time with his father according to his wishes. The orders also provided for N to spend time with her father each week as specified.
Unfortunately, in December 2013, N stopped spending time with her father. Sadly, like S before her, N no longer spends time or communicates with her father.
In those circumstances the mother seeks substantive orders to vary the orders made by Federal Magistrate Walker so that there would no longer be an obligation for N to spend time or communicate with her father.
The father resists the mother’s application.

Applications

In summary the mother seeks orders to the following effect:
·That she have sole parental responsibility for the child;
·That she inform the father by email of any major decision concerning the child within 7 days of making the decision;
·That N live with the mother and spend time with the father in accordance with N’s wishes;
·That N be at liberty to telephone or email the father at any reasonable time;
·That the father may communicate with N by sending her letters, cards and gifts;
·That the father shall not attend at N’s school, home or any workplace (including the mother’s business premises) except by invitation from the child;
·That until N attains 16 years of age the mother shall provide the father with copies of her school reports;
·That the mother be entitled to collect N’s Australian passport from this Court, and be entitled to travel overseas with the child and to obtain a replacement Australian passport for the child without the necessity for the father’s signature on any such application;
·That N be permitted to attend Dr D, clinical psychologist;
·That the father be declared a vexatious litigant; and
·That the father pay the mother’s costs on an indemnity basis.
On the other hand the father seeks orders to the following effect:
·That the parents have equal shared parental responsibility for the child;
·That the mother consult the father in writing in relation to all major long-term decisions about the child and in the event that the father does not respond within 28 days the mother may make the decision;
·That the child live with her mother;
·That unless otherwise agreed the child spend time with her father as follows:
-    In week 1 and during shorter mid-term school holidays from 11.00 am Saturday until 7.00 pm Saturday and from 11.00 am the following day (Sunday) to 7.00 pm that day on the basis that collection would be from outside the child’s residence with return to the same place;
-    In the event that the child’s extra-curricular activities commence earlier than 11.00 am the father to collect the child at a time to be notified by the mother and to return her at 7.00 pm;
-    In week 2 and the Christmas/January school holidays from after school each Wednesday to 7.00 pm;
-    In Christmas/January school holidays the child to spend one week of block time to commence at 11.00 am on a date to be advised by the mother to the father with the child to return to her home at 8.00 pm each evening of the one week period.
·That upon the child attaining 16 years of age she spend time with her father in accordance with her wishes;
·That various orders be made concerning school reports and other school related matters, emergency or illness;
·That in the event that the mother is overseas the father shall drive the child to school each day during the mother’s absence;
·That the child spend time with her father on special days as specified;
·That the parties and child undertake family therapy with a female clinical psychologist other than Dr D with the parties’ son S to attend if possible;
·That various orders be made concerning medical treatment;
·That various restraining orders be made including non-denigration by each parent of the other;
·That the child’s passport remain with this Court and not be released until the child attains 18 years of age; and
·That each party pay their own costs of the proceedings.
The Independent Child Lawyer (“ICL”) supported the orders sought by the mother.

Background

The father was born in Country V in 1962. He is currently 53 years of age. The mother was born in Country F in 1964. She is currently 51 years of age.
The parties met in 1991 in Country G. In June 1994 the mother relocated to Australia as a permanent resident. She then sponsored the father’s relocation to Australia in December 1994, whereupon they commenced cohabitation.
In 1995 the parties were married. At the time of marriage, the mother and father were both in fulltime employment, the father a house painter and the mother a travel agent.
In 1997 S (“S”) was born. He is currently aged 19 years. The mother stopped working for approximately four months to care for S. The maternal grandmother travelled from Country F to assist with caring for S during this time. She lived in the family home. The maternal grandfather also came to Australia and lived with the parties for a period. But he returned to Country F in 2007.
In 2002 N (“N”) was born. She is currently 13 years of age.
The mother took six months leave from work following the birth of N, resigning from her employment and subsequently establishing a business, “Business H” in 2002.
N was baptised when she was approximately 12 months of age. The father did not attend the baptism.
The mother said that in approximately 2004, the parties’ marriage began to deteriorate.
In August 2008 the parties separated on a final basis. They continued to live under the same roof until 18 December 2008. On that day the mother vacated the former matrimonial home and moved to I Street, Suburb J with the maternal grandmother and the children. Apparently the father had decided that he would not leave the home.
Following separation, S refused to spend time with the father. N spent time with the father being approximately four hours each Sunday.
On 30 December 2008 a provisional ex parte Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother, maternal grandmother and the children. This was not extended.
In late January 2009 S commenced secondary school at School 1.
In February 2009 the mother filed an Initiating Application in the Federal Magistrates Court seeking orders for parenting only. In March 2009 the father filed a Response seeking orders for both parenting and property.
In February 2009 the mother was granted sole occupation of the former family home at Canterbury. The police provided support when the parties were due to exchange occupation of the home. Consent orders were made about property.
In March 2009 interim orders were made by consent for the children to spend time with the father on Saturday afternoons. But S did not spend time with his father.
On 20 March 2009 a final ADVO was made by consent against the father for the protection of the mother, maternal grandmother and children for two years.
Between 2009 and 2013 the father made regular police reports alleging that the mother had abused or not supervised the children. The mother said that during 2012 and 2013 she was contacted by police at intervals of between approximately one to two months.
In June 2009 further interim orders were made by consent for the children to spend time with their father on Sundays from 10.00 am to 2.00 pm. An order was made for appointment of an ICL.
On 3 July 2010 the Expert Report prepared by Dr Q was released.
On 22 July 2010 the parties were divorced.
On 11 February 2011 Federal Magistrate Walker, as she was then known, made final parenting orders following a four day hearing. Her Honour accepted that S was estranged from his father. The orders provided for S to spend time with the father according to his wishes, and for N to spend time with the father each alternate weekend for one night, and each alternate Wednesday evening.
The orders also required both parents to attend for family therapy by a therapist nominated by the ICL. Dr D, clinical psychologist, was nominated as the family therapist. The mother and the children attended various consultations with Dr D but the father did not attend. The mother and N continued to attend sessions with Dr D until mid-2014. I shall refer to this again below.
In 2011 the father, who had worked over many years as a professional painter, became unemployed due apparently to a spinal injury. He has remained unemployed and is currently in receipt of government benefits.
In April 2011 the father applied for an ADVO against the mother. An ADVO from Suburb M Local Court issued against the mother on 11 April 2011.
On 31 October 2011 the father commenced proceedings to vary the final parenting orders made on 11 February 2011, asserting a change of circumstances. The mother filed a response seeking that the application be dismissed. Since that time S has refused to spend time with the father.
On 16 December 2011 an order was made by Principal Registrar Filipello to permit the children to travel to the United Kingdom with the mother. The father later filed an Application for Review of this decision which was dismissed. An appeal filed by the father against the relevant orders was abandoned.
In May 2012 the father’s application to vary the substantive orders came before Murphy J and an order was made dismissing the father’s application. The father appealed against this decision then discontinued his appeal. Subsequently he filed an application for an order to extend time to file an appeal. This was dismissed and a costs order was made against the father. The father sought special leave to appeal to the High Court. His application was filed out of time and was dismissed. Murphy J had also ordered that the father pay the mother’s costs on an indemnity basis, the amount subsequently being assessed by the Registrar as $71 668.05. The father has never paid these costs.
In approximately May 2012 the mother commenced a relationship with her current partner Mr B.
In February 2013, Dr D, who had been seeing N for a couple of years, made a written recommendation that N’s telephone contact with the father be limited to once per week at a prearranged time. The substantive orders required the parents to follow the reasonable direction of the family therapist, who of course was Dr D. The mother said that the father did not change the frequency of his calls.
On 19 November 2013 the father was made bankrupt. Subsequent appeals by him to the Full Court of the Federal Court and the High Court were dismissed.
On 20 December 2013 Dr D reported to the parents that N was suffering from increasing anxiety and recommended that her time with the father be suspended.
From December 2013 N has not spent time with the father. The mother filed a new application to discharge and vary the previous parenting orders.
On 19 February 2014 the police were called to N’s school in circumstances where the father had arrived at the school asking to see N and he would not leave the school grounds when N refused to see him.
On 23 February 2014 the mother was contacted by the police in relation to their concern for her welfare and that of the children as a result of comments made by the father to police during a random breath test. I shall refer to this again below.
On 5 March 2014 I ordered that an ICL be appointed for N. I also ordered the suspension of the orders for N to spend time with, and communicate with, her father until the adjourned date of 26 March 2014. I also ordered that the father be restrained from communicating in any form with either of the children, from attending their schools and from approaching their home pending further order. On 26 March 2014 I continued the suspension order until 11 June 2014.
On 11 June 2014 I ordered preparation of a Family Report and, in the context of preparation of the Report, for the Family Consultant to consider providing a short meeting between N and her father supervised by her. I otherwise continued the suspension order.
The father subsequently appealed against the order for preparation of a Family Report. He wanted to have such a report prepared by a psychologist of his choosing. The father subsequently withdrew his appeal.
On 25 July 2014 when the proceedings again came before me the father applied for me to disqualify myself, which I refused to do. He also sought to have Mr Duncan Holmes removed as ICL which I also refused to do. I continued the suspension order.
On 15 August 2014 I made interim orders to suspend the final parenting orders in relation to N spending time with and communicating with the father. Each of the parents gave undertakings not to file further applications. Despite his undertaking, the father filed a further application for parenting orders in April 2015.
The family report prepared by Family Consultant Ms O was released on 20 October 2014.
At the end of 2014, in her final year of primary school, N received the School Dux Award.

At Christmas in 2014 the mother, Mr B and their respective children travelled to P Town for a five day holiday.
In January 2015 the mother and N travelled to Q Town for a five day holiday.
In early 2015, N commenced high school at the T School in Suburb M. S commenced studying at the University of Technology Sydney after successfully completing his HSC at School 1.
On 5 June 2015 the father saw N at a local shopping centre. I shall refer to this below.

Credit

In this case it is not essential to make findings about the credit of each of the parents. Accordingly I do not propose to do so.

Father Meeting N on 5 June 2015

As indicated above, N had not had any contact with her father since December 2013.
On Friday, 5 June 2015 at approximately 3.30 pm the father saw N at Suburb M and had a conversation with her. The parties have given different accounts of this meeting.
The father’s account was as follows.
He was in Suburb M with a friend outside the Westfield Shopping Centre. He noticed N and a school friend of hers standing at the traffic lights. He had not seen N for more than 12 months. He got out of the car and walked towards N. She was hesitant and he saw tears in her eyes. He was also crying as he called her name. When he was about five metres from her, she ran towards him and hugged him. Her friend left and the father kissed N on the forehead and told her that he still loved her and S with all his heart. She told him she liked her new school and that she was happy. He asked her whether she had received his presents and she acknowledged that she had. He referred to her not having telephoned him or sent an SMS message and she said “can’t talk about it Dad, sorry”. He offered to buy her an ice cream which she declined, saying she had to catch the bus. He informed her that it was alright for her to inform her mother that they had met. The father then asked N if she would like him to give her a lift home to which she thanked him and said “I can’t”. He kissed her and they said goodbye.
The mother’s version of this was quite different. This was set out in an email message to the father dated 9 June 2015, the substance of which was as follows.
The father approached N while she was walking from school to the bus stop. He said “I thought I would see you here” from which she understood he had been waiting in order to meet her. N said she did not wish to talk to him and was embarrassed and crying while he talked to her. He spoke to her about the court proceedings saying “I fight for you at court” and “Why mum does not drive you home, you should not be taking buses”. The father offered to drive her home, which she declined and he insisted talking to her despite her making new attempts to leave. He also wanted to take a photo with her. N was distressed. The current Court orders restrain the father from contacting N. N has made it clear that she does not wish to talk to her father and she is concerned that he will follow her after school.
In my view, the father put N in a very difficult situation on this occasion. I had ordered, on 5 March 2014, that the father be restrained from communicating in any form with either of the children, from attending their schools and from approaching their home pending further order. N would have been only too aware of these restraints against her father.
Given the very difficult situation that the child found herself in on that occasion, in my view, the version which the mother has presented would be more likely to reflect what actually occurred on that day, at least from the child’s perspective, than the father’s version. This was also the view of the ICL who pointed out that there has been no attempt by the child to contact her father since their chance meeting. Mr Holmes submitted that this suggests that the mother’s version about this meeting is more likely to be correct. I agree. But I have no reason to doubt that the child would have expressed her love for her father to him on that occasion.
The preferable course for the father would have been for him to put his own personal needs to one side, to remember that he was the subject of the restraining orders and simply to wave to N and move on, and attend to his business so as not to cause the difficult situation for her which he did.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Family Violence

The mother alleges a long history of family violence including physical violence during the parties’ marriage. The father also makes allegations of family violence against the mother.
Family violence is defined in s 4AB of the Act as follows:
4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
4AB(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a)      an assault; or
(b)      a sexual assault or other sexually abusive behaviour; or
(c)      stalking; or
(d)      repeated derogatory taunts; or
(e)      intentionally damaging or destroying property; or
(f)      intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
Sub-sections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:
4AB(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
4AB(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The mother asserted that the father was physically violent towards her and later towards S. She said that after S was born the father was verbally abusive towards her.
The mother said that the father had a bad temper and would often scream at her including in the presence of the children. She said that the father kicked her when she was pregnant with S and hit her some years later. The father denied this.
The mother said that in 2004 she suggested to the father that they separate. She said he replied as follows:
You’re a bitch if you ever leave me I will kill you and I will kill myself as well.
The father denied this.
The mother said that between 2005 and 2008 the father’s temper tantrums became worse.
In relation to S, the mother said that the father would physically discipline S regularly from the time the child was 5 or 6 years of age. She said that she saw the father hit S many times and that during the last six months of marriage the hitting or smacking of S would occur once or twice each week.
Family Consultant Ms O reported as follows at [31]:
[S] said that (after separation) he made the decision to live with his mother because his father was “going mental”. [S] said that his father had “no logical thoughts, was angry and ridiculously intimidating”. He said that his father is like that often.
At [33]:
[S] said that there was a period in his life when he cried every day about the things that his father was doing to him. For example, [S] said that his father would hit him if he tripped over and said that his father once slapped him on his face because he pushed his sister. [S] said that this was not a one-off incident and that his father has slapped his face somewhere between 100 and 200 times. He said that his father was also verbally abusive and often called him names. [S] believes that his father denies hitting him on his face and this makes him very annoyed.
At [42]:
[N] … said that she can “vividly” remember her father hitting [S] but when asked to clarify what the word “vividly” meant, [N] said “barely see it, only a couple of seconds”.
S said to Dr Q, Dr E and Ms O that his father had hit him on many occasions.
The father denied these allegations and said that he had only hit S on one occasion. The mother conceded that despite her assertions in this regard, she never complained to the police about this alleged behaviour by the father.
The parents had agreed, as reflected in the notations to their consent orders made by the Federal Magistrates Court on 18 March 2009, that they would endeavour to resolve Apprehended Domestic Violence proceedings in the Suburb M Local Court by the issue on a without admissions basis of an ADVO against the husband for 2 years, the protected persons to be the mother and her mother but the children were not to be included as protected persons. But when the ADVO proceedings were next dealt with the Magistrate included the children as protected persons apparently informing the parents that such was a requirement of the law. The father was frustrated by this because he thought that this made it more difficult for him to develop his relationship with the children.
The mother made numerous complaints to the police that the father had breached the ADVO. But she conceded that the father was never convicted of a breach. On one occasion the Local Court found an offence but the father successfully appealed to the District Court of New South Wales and the Local Court conviction was set aside on 1 June 2011.
On the other hand there was an incident between the parties at changeover which resulted in an ADVO being issued on 11 April 2011 for a period of 8 months to protect the father against the mother.
The mother also alleged that there have been occasions when the father has harassed her and stalked her. She said that she made complaints to the police about these matters. The mother also said that the father had threatened to kill her on more than one occasion and she complained to the police about such threats.
Prior to the expiration of the 2009 ADVO the police sought an extension. There was an interim extension of the ADVO for 9 months but the application by the police was dismissed, this being in 2012. No ADVO has been in operation since this.
Despite all the allegations about the father hitting S, as I have said, he denied doing this although he admitted smacking S on one occasion. There is no objective evidence to support this allegation and in all the circumstances I find myself unable to make a finding that this occurred.
A recurring issue in these proceedings is the father’s propensity towards anger. Each of the mother, S and N have referred to this.
Ms O reported at her first meeting with the father that he “was visibly distressed” when he realised he would not be seeing N that day. She said that during his interview the father “was upset and, was loud and expressive throughout”. She said at the second interview the father had indicated some regret about how he might have been perceived during the first interview.
The mother had asserted to Dr Q that the father could not control his anger. She also said that his brothers and his mother have said that the father has an anger issue.
S informed Ms O that his father was “loud” and that he engaged in “screaming”. S told Ms O that he decided to live with his mother because his father was “going mental”. He said that his father had “no logical thoughts, was angry and ridiculously intimidating” and that his father was like that often.
N informed Ms O that the father had become upset upon reading in a report by Dr D that N was happy about a certain frequency about visits with her father. N said that it was a mistake on her part. But she said after her father read this he screamed at her and suggested that she did not love him. She said she did love him.
Ms O also said that N felt pressure from her father to keep her mobile phone charged and she said that the father became angry with her if he could not contact her.
N told Ms O that “sometimes” she got a little bit scared of her father when he was angry. She said that her mother also screams but her mother gets over it but her father stays angry longer. She also informed Ms O that she did not think that her father had any idea about how much it upset her when he was angry with or in front of her.
Both children have reported a considerable amount of screaming between their parents. I am comfortably satisfied that this is a case where there has been family violence within the meaning in the Act. In my view, it is more probable than not that both parents have been verbally abusive towards the other and over a long period of time. Sub-section 4AB(2)(d) describes family violence as including repeated derogatory taunts. Each of the parents has alleged such behaviour against the other and each of the children have reported to Ms O and others their experience of being present when their parents have been engaged in screaming at one another.
There is every possibility that in this family there has existed family violence in several other forms than this. But the state of the evidence is not such as to support a broader finding of family violence.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in N’s best interests for her parents to have equal shared parental responsibility for her. But the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence.
As indicated above, in my view it is more probable than not that both parents have engaged in family violence, in which case the presumption does not apply. But even if I am wrong about this, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of N for her parents to have equal shared parental responsibility for her.
In my view this is certainly the case. The parents have a toxic relationship. They have a long history of hostility towards one another and a level of conflict which has remained high even though they have now been separated for in excess of 7 years. The mother said “I find it difficult to find any good quality in the father”. The father remains highly critical of the mother.
Their level of communication has been non-existent now for some years. Their only means of resolving any dispute about one or other of the children has been by application to this Court for determination. Their litigation in this Court and other courts has been ongoing since 2009. The mother said that the father has filed more than 41 applications. The mother has also filed numerous applications.

There is no possibility of the parents being able to make any joint decision about any aspect of N’s care or welfare. In my view, the only possible course in N’s interests is for the mother, as the parent with whom N is to live, to have the sole parental responsibility for N. This would be consistent with Ms O’s recommendation.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

I am satisfied that N holds the view that she does not wish to spend time with her father.
Ms O has interviewed N on two occasions. Ms O reported that N was clear that she did not want to spend time with her father.
N has also made it quite clear to her mother and to Dr D that she does not wish to spend time with her father.
Ms O said that she thought that N showed average maturity for her age. Ms O said that N appeared to be extremely anxious about being involved in interview and seemed to be a child who had had a negative experience living in the middle of conflict between her parents.
Ms O reported that N is now at a stage of development at which she should be able to participate in decision-making.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

Sadly, as was the case with S when the proceedings were heard by Federal Magistrate Walker, it would now appear that N’s former close relationship with her father has been lost, or at best, “put on hold” by N. I say “put on hold” because Ms O reported that N thinks that she will be able to have a relationship with her father on her own terms when she is older. And she did inform Ms O that she does love her father. But, as indicated above, she has made it clear to Ms O, her mother and to Dr D that she does not wish to have a relationship with her father at the present time.
The mother conceded that when N was younger she had a good relationship with her father. She said that he took her to the park. But she said that the father failed to attend to the child’s needs as she developed and tended to treat her as though she was a younger child. She said that the father had a problem interacting with his children.
N informed Ms O that she told her father that her mother had informed her that she could choose whether or not to spend time with him when she turned 12 years of age. The father confirmed this. The mother denied that she had said this. I must say I prefer the father’s evidence and what the child told Ms O over the mother’s denial.
N has always lived with her mother. The father asserts that he was the child’s primary carer up to the time of the parents’ separation, an assertion which the mother denies. In any event, there can be no question that the mother has been N’s primary parent since separation and continues as such. As I have said, the child has spent no time, or had any relationship, with her father since December 2013. So looking objectively at this, although Ms O did not comment on this, it must be expected that N has her primary attachment to her mother. They obviously have a close, if somewhat complex, relationship.
Ms O reported that, in her view, there had been problems in N’s relationship with her mother. The mother took exception to this and cross-examined Ms O about this. Ms O referred to there having been a time when N was rude to her mother and also to Mr B. N had also refused to eat meals. Ms O referred to the mother having introduced two partners to the children which Ms O described as having “negatively impacted” the mother’s relationship with S initially, and more recently with N. The mother informed Ms O that she was incorrect and that Mr B has been her only partner.
N informed Ms O that initially she was unhappy with her mother being in a relationship with Mr B. She had informed her father that she did not like Mr B. But in more recent times N’s relationship with Mr B has improved to the point where N now appears to have a good relationship with Mr B and his children.
N also has a close relationship with her maternal grandmother who has lived with the parents and the children over many years.

Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

The mother made some criticism that the father did not reply to a letter she said she sent to him about N’s school enrolment. The father said he never received any such letter.
This consideration is not very significant in these proceedings.

Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

Since separation the father has paid very little child support. He remains unemployed. In October 2014 he was assessed to pay child support of $33.25 per month and this remains the current assessment. He said that he has been paying child support but the actual position about payment is unclear to me.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

Ms O expressed the opinion that it would not be in N’s best interests for the Court to force her to spend time with her father in circumstances where she had stopped seeing him apparently as a way of removing herself from the ongoing conflict between her parents. Ms O said that in view of N having made such a difficult decision, to force her to spend time with her father could well result in a permanent disruption to their relationship.
The mother said that since N has ceased spending time with her father, the child has a much more positive and happy attitude, she is co-operative with her mother in doing household chores and preparing for dinner, she is no longer resistant to the mother’s request that she go to bed at a reasonable hour during the school week and that N is more relaxed and more communicative with her mother. The mother also pointed to N’s success at settling in to her new school at T School.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

This is not a relevant consideration.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

It is clear that the mother does not have the capacity to be able to support a relationship between N and her father. On most occasions that this was suggested to the mother during the hearing she became somewhat defensive and appeared to be offended by such a suggestion.
This opinion was expressed by Family Consultant Ms O and the mother challenged Ms O in cross-examination about this. When asked by the mother what she based her opinion on, Ms O said that the mother very clearly told her that she did not think N should be having any time with her father.
Initially the mother had asserted that she would be able to support N having a relationship with her father. In support of this assertion the mother said that she had complied with court orders which required the child to spend time with her father, she had taken N to psychologists being Dr E and Dr D and that she had supported therapy. She said that it was the father who did not attend upon Dr D. She said time and again that she made the child available to the father in circumstances where she said the child had expressed a view of not wanting to go. But as Ms O pointed out to the mother, the child had a certain view of her father which, it was more probable than not, was strongly coloured by things of a negative nature which the mother had said about the father and matters of generally negative attitude to the father expressed by the mother and others in her household which would have been absorbed by N.
For example, Ms O said that N had informed her that her father had kicked the family out of the family home, that is mother, S and N. Ms O pointed out to the mother that in fact at the time that the mother left the former matrimonial home N would only have been five or six years of age. Ms O said that cognitively a five or six year old child would not have had the capacity to form its own view that the child had been kicked out of the home. Accordingly, Ms O had formed the view that N had been informed about this matter, and in those negative terms.
It was very clear from questions asked of the mother, including by myself, that she was unable to say anything positive about the father. In my view, it would be incomprehensible for her negative attitude to the father not to have been absorbed by the children. The mother demonstrated no insight into this at all and attributed almost the entirety of the blame for the breakdown in the relationships between each of the children and their father to behaviours by the father. The mother did not appear to be able to contemplate that her very negative attitude to the father and discussion about him in negative terms to the children has had a very damaging effect on the relationship between both children and their father. When asked specifically whether the child would have any different view than that her mother’s view was that it was not in her interests to have any relationship with her father at present, the mother could not even contemplate the question. But the mother eventually conceded that she could not support N having any relationship with her father at the present time but she thought that when N and S were 20 or 25 years of age there was “a hope” that they might be able to re-connect with him.
An example of the mother’s negative and undermining attitude towards the father was her reaction to him having purchased gifts for N which he left with the child dispute section of this Court and which ultimately the mother agreed she would give to the child. What emerged about this in the hearing was that the mother was dismissive of the father’s generosity in purchasing the toys. She said that the toys were toys which N would have grown out of many years ago which she said reflected the fact that the father had no understanding of the stage of development that N had reached. The mother appeared unable to make any concession that in fact for the father to have endeavoured to please the children and express his love for them through the gifts was relevant in the proceedings. In my view, this was another powerful example of her negative attitude to him, not being able to resist taking any available opportunity to portray the father in a negative manner.
Furthermore, the mother was shown photos of N taken in approximately December 2013 depicting the child smiling in the presence of her father. The mother offered that she thought the reason for the child’s apparent happiness was because the father had taken her to see Santa at the shopping centre. The mother was unable to concede that the child might simply have been happy in the presence of her father. The mother said that the child is very compliant with her father because she has been fearful of him over a long time. She said that the child’s apparent happiness in the photos showed only that she was happy in the particular moment of the photograph and did not reflect the child’s real relationship with her father. The mother said that the child had informed her that her father would “re-make” her take the photo if she was not smiling.
Having said this, it is true, as the mother was at pains to point out, that the mother endeavoured to comply with the orders for family therapy whereas the father has not. The father has been unable to put his own views about the inappropriateness of Dr D as therapist to one side in the interests of facilitating the opportunity which N otherwise might have had of being able to arrive at a position where her relationship with her father might have been able to be repaired.
In relation to the broad issue of breakdown in the relationship between father and daughter, it would be incorrect to say that the father has not contributed to this situation, because clearly he has. Firstly, and these matters reflect on his parenting capacity, he has been unable to resist the temptation to continue the litigation by a multiplicity of ongoing applications. He asserts that he has done this in the interests of his children, apparently being oblivious to the negative effect that this has had on his relationship with the children.
He has done a number of things which have caused N embarrassment. He appeared at her school uninvited on 19 February 2014. N had stopped seeing him some weeks earlier in December 2013 after Dr D had recommended this apparently because the child had become increasingly anxious. N refused to see her father at school on 19 February 2014 which apparently upset the father. The police were called to the school and this caused great distress to the child. The father spoke to N’s teacher in an inappropriate way and within the hearing of N’s classmates which caused the child considerable embarrassment
The mother said that a few days later, on 23 February 2014, she received a telephone call from a Senior Constable W who informed her that she had stopped the father in his motor vehicle for the purpose of administering a random breath test on 20 February 2014 and was concerned about certain things he said. The Senior Constable visited the mother later on 23 February 2014 and showed her a note which she had made of what the father had said. Included in the note was the following:
I’m not the only one. Every day on TV I see people killing a child and I just can’t believe I use to say that’s wrong this that but after what I’ve been though, I say I cannot judge nobody. But I am keeping a level head for 5 years. I don’t know what more I will do you understand but I am on the verge of collapse.
The mother said that N had been enrolled by her father to play with a soccer team. This was during the 2011 season. The mother said that N had informed her that her father did not take her to the last few games that season and that the club had declined to register her for the 2012 soccer season. The mother said that she then rang the soccer coach who informed her that they could not have N on the team that season because of poor behaviour by the father when he had attended games the previous season. She said that the coach had said that the father’s behaviour had been “totally unacceptable”. She said that the coach informed her that the father had yelled during matches and frequently argued with the coach at matches and at training, and that it was not appropriate for the other children to be exposed to the father’s poor behaviour.
The mother also said that the child had informed her that she did not want to continue going to dance classes because her father had learned that Mr B had been taking the child to her classes and threatened to send Mr B and the mother to jail. The mother said that the child said that this scared her and this was why she said that she did not want to go to dance class.
Ms O said that the father might benefit from receiving information about how to manage adolescent children because his approach had not been working for him or the children.
I am satisfied that the mother has been able to provide well for the physical and intellectual needs of the children. She appears to operate a successful travel agency. She has been able to maintain the former matrimonial home for the children. And it is clear that she has been able to pay the substantial costs of their private school education respectively. S is now at university and N is obviously doing very well at T School.
On the other hand, it is less clear that the father would be able to provide for such needs. As indicated above he has remained unemployed and pays the most basic level of child support.
Having said this, it is clear that neither parent has been able to demonstrate that they are capable of providing for the children’s emotional and psychological needs. Each has failed to protect the children from their conflict and hostility. To some extent each parent appears to have enlisted the children to their side of the conflict. For example N told Ms O that when she was spending time with her father he asked her to check on her mother and tell him things such as what time she returned from work. N indicated that this made her feel uncomfortable. N informed Ms O that she told her father that her mother had informed her that she could choose whether or not to spend time with her father once she turned 12 years of age. I accept this.
S informed Ms O that after his parents separated and he spent time with his father, his father always spoke negatively about his mother.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

I have referred above to the level of maturity of N.
During her last year at primary school, 2014, N was a school captain and she achieved Dux of the school.
N commenced her secondary education in 2015 at T School Suburb M, a private school.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant matter.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

The father is very critical of the mother in this regard. He has consistently asserted that the mother does not make herself sufficiently available for N, her priority being to work long hours in her business. It is clear that the mother does work long hours in her business. This was the subject of some criticism by S in the earlier proceedings before Federal Magistrate Walker. But the mother appears to have been able to arrange for her mother, her partner Mr B or S to be available to assist N when the mother has not been able to do this by reason of her work.

The father is also critical about the fact that the mother travels overseas regularly and leaves N in the care of others. The father tendered into the evidence records of the Department of Immigration and Border Protection to demonstrate the frequency of the mother’s departures from Australia in recent years. The mother said that she travels overseas on average 3 times a year, often for business associated with her operation of her travel agency business. She leaves N in the care of her mother, S and her partner Mr B.
On the other hand, the mother is critical of the father’s attitude to the responsibilities of parenthood. She is critical about him not having sustained his employment or found alternative employment and about the fact that he has paid only a very modest amount by way of child support.
Ms O said that the mother appears to be committed to the children receiving an excellent education which should bode well for their futures.
The substantive orders made by Federal Magistrate Walker on 11 February 2011 included a requirement for the parents to attend family therapy. As indicated above, the family therapist was to be nominated by the ICL. There was some difference of view concerning who the family therapist would be but ultimately the ICL, Ms Mary Alex, nominated Dr D.
The order was made in circumstances where her Honour had observed that continuing litigation between the parents would add to conflict which would not be in N’s best interests. At paragraph 99 of the judgment her Honour said as follows:
… The Court has been asked to make an order about therapy. The Court is unfortunately not optimistic that such therapy can be easily established. Apart from the length of time [S] has been estranged from his father and the failure of either parent to accept some responsibility for this, the father has been unwilling to accept an appropriate and experienced therapist recommended by [Dr Q].
This was a reference to Dr Q’s recommendation that the parents and the children attend a Dr U, a behavioural scientist, for family therapy. But during the hearing before her Honour the father indicated that he would not be prepared to accept Dr U.
Unfortunately for N (and for S), the father has been unable to engage with Dr D for the proposed family therapy which Dr Q and her Honour considered would be very important for the children.
At paragraph 106, and as part of her Conclusion, her Honour made the following, somewhat prescient, observation:
It may well be that over time the father will have the opportunity to spend more time with [N] during school holidays. Much depends on him, however, and his willingness to co-operate with the arrangements for therapy.
Notwithstanding her Honour spelling out to the father the importance of the family therapy, it has been beyond his ability to be able to engage in this. He did not attend on Dr D because he said she acted unprofessionally by not returning his telephone calls.
In my view, this reflects poorly on the father’s attitude to his responsibilities as a parent and also on his capacity to properly parent the child. He appears to have been more concerned about his frustration with Dr D, even though he has not engaged with her, than demonstrating the ability to understand that therapy involving himself, the mother and N with Dr D would be very important from N’s point of view. The father wanted a new therapist to undertake the family therapy. Initially I could see some merit in this. But Mr Holmes for the ICL indicated that N did not wish to change therapists and he submitted that given all the conflict and hostility and the fact that N had been interviewed by numerous behavioural scientists, it would not be in her interests to change therapists. I accepted this.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

I have referred to this matter above.

Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;

There is no current family violence order.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

These parents have been engaged in litigation about parenting and domestic issues in this Court and other courts now for more than six years. I shall take account of this consideration in the formulation of appropriate orders.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

The relevant matters have been considered.

Primary Considerations

I return to the primary considerations.
On the one hand there would be benefit to N in being able to have a meaningful relationship not only with her mother but also with her father. It is clear that he loves her dearly and N informed Ms O that she loves her father. But this primary consideration is to be weighed with the other primary consideration namely, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. And s60CC(2A) of the Act requires that in applying these primary considerations the Court is to give greater weight to the latter consideration.
Dr D has been providing therapy to N since May 2011. In relation to N’s psychological state, Dr D said as follows. Prior to December 2013 N had a high degree of anxiety to the extent that it was interfering significantly in her functioning. She had an acute anxiety disorder involving symptoms of sleep disturbance, labile mood, hypervigilance and excessive checking. She also had a significant eye twitch and a great deal of difficulty containing her distress.
As at July 2014 Dr D observed the following. That N appeared to be extremely fearful of her father. This revolved around a perception that her father attempts to control her, that he constantly denigrates her mother, that he punishes her if she fails to behave as he requests and that he can be erratic, emotional and unpredictable.
Dr D said that she had significant concerns about N’s psychological and emotional wellbeing. She had formed the view that N had been exposed to chronic levels of family conflict.
Dr D reported that since N had ceased spending time with her father, her anxiety had considerably resolved although she remained anxious about the possibility of negative consequences if she was to resume contact with her father.
I shall refer again to this in my conclusion.

Conclusion

Dr D recommended N’s time with her father not be resumed until the father underwent a psychiatric evaluation and participated in therapy to assist him to understand N’s experience and to respond sensitively to N’s needs.
As indicated above, the father has apparently found himself unable to participate in family therapy. During the course of the hearing the father appeared to be affronted by a suggestion from S to Ms O that the father might have a mental illness. I am not aware that the father has undergone any psychiatric evaluation.
I am satisfied that it is not possible to be able to provide opportunity for N to spend time with her father or to have any real involvement with him without the consequence of exposing the child to a serious risk of psychological harm. Sadly, almost certainly as a consequence of the long-standing, ongoing, high level of hostility and conflict between her parents, and the dysfunctional nature of their relationship, N appears not to be able to have a meaningful relationship with both of her parents.
N is a reasonably mature 13 year old child who has recognised this herself. Her views about her living arrangements have been expressed very clearly by her to Ms O and others. As I have said, in her report Ms O said “[N] was clear that she did not want to spend time with her father …”.
Ms O formed the view that it is unlikely that the mother would support N having a relationship with her father. This opinion was challenged by the mother during her cross-examination of Ms O. I have referred to this matter above. As I have indicated, the mother eventually conceded that she did not regard it to be in N’s interests for her to have a relationship with her father at the present time. And as I have said, the mother also conceded that she would not be able to support N having such a relationship.
As Mr Holmes for the ICL submitted, Dr Q who was the single expert in the proceedings before Federal Magistrate Walker, expressed her concern, now more than five years ago, about the vulnerability of N in arrangements between her parents. Dr Q said as follows at page 58 of her report dated 3 July 2010:
Because this is a high conflict situation it would be difficult to institute a shared parenting arrangement involving [N] and her father … . In particular with this family dynamic there is in my view a risk that [N] could come under pressure from her mother, grandmother and/or brother to align herself with them; there is also a risk that the father will attempt to win her sympathies rather than to meet her emotional needs. Thus, [N] may remain in the ‘line of fire’ as it were between the two camps. This is the major obstacle to a shared arrangement and it is a significant one. …
Unfortunately, time has shown that N remained very much in the “line of fire” as referred to by Dr Q. Her Honour Federal Magistrate Walker made the final parenting orders on 11 February 2011. Within approximately 8 or 9 weeks the father embarked on further litigation with the issue of an ADVO by Suburb M Local Court against the mother. In October the same year the father filed an application to vary her Honour’s substantive orders. A few weeks later the mother applied for orders to permit her to remove the children from Australia for an overseas visit because the father would not permit this. Then the father appealed and abandoned his appeal. Next the father applied to the High Court and his application was dismissed.
As indicated above by early 2013 there were difficulties between the parents concerning N’s telephone calls to her father and Dr D became involved as N’s therapist in recommending reduction in frequency of the calls.
The mother sought to enforce a costs order against the father using proceedings available under the Bankruptcy Act and the father became bankrupt in November 2013.
As indicated above, in December 2013 N stopped spending time with her father.
So the conflict and hostility between the parents continued in spite of the very clear parenting orders made by Federal Magistrate Walker and the warnings by her Honour and also by Dr Q.
Ms O opined in her Report that in circumstances where N had been subjected to a high level of conflict and hostility between her parents over many years, it was completely understandable that N might want to remove herself from “the crossfire”. Ms O went on to say that after N has made such a difficult decision, it would not be in her best interests for the court to force her to spend time with her father. Ms O was concerned that any attempt to force N to do so “will” result in a permanent disruption to their relationship.
Learned solicitor for the ICL submitted that N has chosen to cease spending time, or having any contact, with her father as a means of surviving the ongoing conflict between her parents and the Court should regard her wishes as the predominant factor in the Court determining what orders would be in her best interests. Learned solicitor also submitted that the Court should put in place a set of orders which would give peace to the child in terms of her parenting arrangements and be least likely to lead to further litigation.
Upon the Court considering all the relevant considerations to determine what parenting arrangement would be in N’s best interest, particularly the protective consideration in s60CC(2)(b) of the Act, in my view, the appropriate arrangement coincides with N’s expressed wish. That is, that she is to reside with her mother and not spend time, nor have contact, with her father.
In my view, on the basis particularly of the evidence of Ms O and Dr D, if the court was to force N to spend time with her father and to place her back into “the crossfire” as it were, this would expose her to an unacceptable risk of emotional and psychological harm. It would also be contrary to her clearly expressed wish. In my view, such a course would be quite contrary to N’s best interests.
Not to be having opportunity to have a relationship with her father whom she loves and who loves her is a most unfortunate outcome. But it has come about as the result, in my opinion, of the failure of each of her parents to be able to protect N from their ongoing conflict and hostility towards one another and their consequent dysfunctional parenting.
The father said that if N was to inform him directly that she did not wish to spend time with him, he would accept this. I must say in my view, this demonstrates a remarkable lack of insight by the father to N’s needs and the extremely difficult and painful situation in which she now finds herself, due to her parents’ behaviour. In my view, for N to be placed in the position where she was required to confront the father with the decision which she has made would be completely inconsistent with the child’s best interests. As Ms O observed, it has been very difficult for N to come to this decision. I have no doubt that this is because she loves her father and would not wish to hurt him. In fact so difficult has this been for N that Ms O suggested that as time goes on N might need to be supported by an independent therapist. I propose to include an order to this effect.
Ms O also said that if N was receiving therapeutic support it might be appropriate for her to receive letters, cards and gifts from her father provided that the content of such did not refer to the mother or to S. I propose also to include an order to this effect.
Because N suggested to Ms O that she might be able to see her father at some point in the future, I propose to include an order which would leave it open to N to contact her father if she should so wish.
The mother has also sought an order to restrain the father from attending at N’s school, home or work premises (including the mother’s business premises). This was supported by the ICL. I accept that such an order would serve the child’s best interests in view of the attendance of the father at N’s school in February 2014 with the unfortunate consequences this had for N, including police involvement as referred to above.
The mother also sought orders to permit her to remove N from Australia for the purposes of overseas travel. On the basis of the orders I propose in relation to parental responsibility, residence and not spending time with her father, it would be consistent with N’s best interests for her to be able to travel overseas.

Costs

Costs of ICL

The ICL seeks an order that the mother pay one half of its costs in these proceedings which it is submitted would be fixed in the amount of $5500. Mr Holmes indicated that the father has been granted a waiver of his one half of the ICL’s costs.
It is clear that an order for costs may be made in favour of an ICL pursuant to s 117(2) of the Act (see s 117(3)).
In my view it would not be just within the meaning of s 117(2) of the Act for the Court to make the costs order sought by the ICL against the mother. In my view, this is a case which clearly required an ICL to be appointed in the interests of N. The litigation has been ongoing between the parents over many years as I have said. In circumstances where the child refused to spend time with her father as required pursuant to the substantive orders, the mother had no option than to apply to the Court for variation of the substantive parenting orders. There have been a very considerable number of applications in relation to parenting matters. The mother has spent a very large amount of money on legal costs over a period in excess of six years. Although she works full time managing her travel agency for which she appears to be quite well paid, she has found it necessary to borrow funds and currently services a loan, the balance being approximately $640 000.
The mother has been successful in obtaining numerous costs orders against the father including an assessment that he pay her more than $71 000. But the only costs pursuant to such orders achieved by the mother against the father was a very modest amount made available to her under an order for security for costs. The mother continues to have almost the entire financial responsibility for N, the father paying only the minimum amount of child support and she also makes provision for S who is attending university.
In all the circumstances, in my view, it would be unjust for the Court to make an order for costs against the mother in favour of the ICL. I propose, therefore, to dismiss the ICL’s application in this regard.

Costs of mother

The mother seeks an order that the father pay to her the sum of $20 000 by way of her costs in these proceedings.
The mother submitted that in fact her legal costs are in an amount of $26 524. The mother also said that because she has spent so much on legal costs in respect of the parenting and other proceedings between herself and the father, that more than a year ago she had no choice but to represent herself in the proceedings as she could not afford further legal costs.
I ordered that costs of the proceedings before me on 25 July 2014 and 15 August 2014 be reserved. On 25 July 2014 the father made an application that I disqualify myself from hearing further applications. He also sought an order that Mr Duncan Holmes be discharged as ICL. The father was wholly unsuccessful in both applications.
It is the case that the father’s income consists only of a disability pension. On the other hand, the mother is in full time employment managing her travel agency. But she has a substantial loan to service and she bears almost the entirety of the costs of supporting N and S, the latter now attending university.
In my view, both applications had no reasonable prospect of success.
The father would appear to have no means for payment of an order for costs. He already owes the mother a very substantial amount for outstanding costs pursuant to previous costs orders made against him as I have said. But in my view, the mother is entitled to her costs of these failed applications and if the father’s financial circumstances change in the future she might be successful in enforcing her costs orders.
In relation to the mother’s costs of 15 August 2014 it is the case that the substantive parenting orders which provided for N to spend time, and communicate, with her father were suspended. Orders were also made to restrain the father from attending the children’s schools and residence. But in my view, there is no basis to justify the making of a costs order against the father for that occasion.
In relation to the immediate proceedings I have a similar view. This is that in circumstances where N had stopped spending time, and communicating, with her father it could not be said that there was no basis for the father to resist the mother’s application that the substantive contact orders be discharged. In my view, despite the strong recommendations by Ms O, the father was entitled to test these and the relevant evidence. I have considered the parties’ respective financial circumstances and noted the fact that the father has been wholly unsuccessful. But in my view, the circumstances involved in the immediate proceedings do not justify the making of a costs order against the husband.

Vexatious Litigant

As indicated above, the mother also seeks an order “That the father be declare Vexatious litigant in relation to parenting.”.
It was submitted by the mother that an order should be made pursuant to s 102QB(2) of the Act which would prohibit the father from instituting proceedings in relation to parenting without leave of the Court.
In summary the mother’s submission was as follows. She commenced proceedings in February 2009 and since then the father has embarked on litigious warfare as a vehicle through which he can continue to vex and harass her, starve her of her assets and financial resources and interrupt her employment and ability to look after the parties’ children. The father has filed in excess of 41 applications together with a considerable amount of supporting material, five separate appeals and an application for special leave to appeal to the High Court. The father’s approach to the litigation can only be described as unrestrained aggression. His litigious approach is vexatious and harassing which has contributed to the many hundreds of thousands of dollars incurred by her in legal costs. Costs orders against the father do not deter him from ongoing litigation because notwithstanding numerous costs orders against him, he has failed to pay such.
It is the case that a vexatious proceedings order may be made pursuant to s 102QB(2) of the Act if the Court is satisfied that (a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals (s 102QB(1)).
“Vexatious proceedings” is defined by s 102Q(1) of the Act as including the following:
(a)proceedings that are an abuse of the 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 or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
It is the case that Watts J has found that a vexatious proceedings order should be made in respect of financial matters against the father – see Haykal & Krawiec (No 2) [2015] FamCA 266. At [84] of the judgment his Honour said as follows:
Turning to whether or not a vexatious proceedings order should be made against the husband in respect of financial matters, as the discussion above demonstrates, there have been multiple occasions where an Australian court has found that proceedings have been instituted or pursued by the husband without reasonable grounds. Often costs orders have been made against the husband in favour of the wife. Often the court has made comments to the effect that the husband’s application or appeal was without any apparent basis or merit. Such findings clearly attract the definition of vexatious proceedings contained in s 102Q(1)(c) of the Act.
In the present case however, in my view, it could not be said that the parenting proceedings are vexatious. The catalyst for the proceedings was the fact that in December 2013 N formed the view that she would no longer spend time or have contact with her father. As indicated above, this precipitated the mother filing an application to vary the substantive orders which required the child to spend time and communicate with her father. The father responded to that application as was his right to do.
There is no question in my mind that the father has conducted the proceedings out of a genuine belief that for N to continue to have a relationship with him would be in her best interests, as I have already said. True it is, as also indicated above, that the father is hostile to the mother and that there has been a great amount of conflict and hostility between them. But I am far from persuaded that his interest in responding to the mother’s application was for the purpose of harassing and causing difficulty for the mother as distinct from his strong desire to maintain contact with his daughter. In all these circumstances, in my view, this Court could not find that the father’s immediate proceedings are vexatious.
Accordingly, this Court would not exercise its powers pursuant to s 102QB(2) of the Act to make a vexatious proceedings order in respect of the parenting of N. I propose therefore to dismiss the mother’s application in this regard.
This is not to be interpreted by the father as some form of encouragement for him to file a further parenting application in the future. On all the material before the Court, the best interests of N will be served by cessation of the litigation between the parents in respect of her parenting.

I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 26 February 2016.

Associate:

Date: 26 February 2016