LD v QD; LD v MD

[2023] ACTMC 54

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

LD v QD; LD v MD

Citation: 

[2023] ACTMC 54

Hearing Date: 

24 August 2023

Decision Date: 

22 September 2023

Before:

Special Magistrate Christensen

Decision: 

Applications for costs refused.

Catchwords: 

FAMILY VIOLENCE ORDER – PERSONAL VIOLENCE ORDER – costs application – application by the respondent to the protection orders where the protection proceedings were discontinued – consideration as to whether the protection applications were “vexatious, frivolous or in bad faith”

Legislation Cited: 

Family Violence Act 2016 (ACT) s 73

Personal Violence Act 2016 (ACT) s 67

Cases Cited: 

Arsenin v George [2003] ACTSC 33

Langfied v Anderson; Anderson v Langfield [2023] ACTMC 25

Polleycutt v Taylor [2019] ACTSC 174

Polleycutt v Taylor [2020] ACTSC 158

Stark (a pseudonym) v Hillam (a pseudonym) (No 2) [2022] ACTSC 272

Texts Cited:

Explanatory Statement, Family Violence Bill 2016 (ACT)

Explanatory Statement, Personal Violence Bill 2016 (ACT)

Parties: 

LD ( Applicant)

QD ( First Respondent)

MP (Second Respondent)

Representation: 

Counsel

Self-represented ( Applicant)

Self-represented ( First Respondent)

Self-represented (Second Respondent)

Solicitors

Self-represented ( Applicant)

Self-represented ( First Respondent)

Self-represented (Second Respondent)

File Number:

FVO 617 of 2022

PPO 588 of 2022

SPECIAL MAGISTRATE CHRISTENSEN

REASONS FOR DECISION:

INTRODUCTION

1․The applicant, LD, applies by way of application in proceeding filed 25 July 2023 for costs arising from a family violence order application and a personal protection order application.

2․The separate applications can be appropriately considered together as they relate to a family violence order application and a personal protection order application that are related.

3․The respondent for the purposes of the first cost application and the applicant for the purposes of the family violence order application is QD, the former spouse of LD. The other respondent for the purposes of the second costs application and the applicant for the purposes of the personal protection order application is MD, the current spouse of QD. 

4․LD seeks costs in relation to the family violence order and the personal violence order applications, submitting that the proceedings were commenced vexatiously, frivolously, and or in bad faith. It is submitted that the applications were directed towards seeking retribution against LD due to dissatisfaction regarding non‑compliance with parenting orders.

BACKGROUND

5․It is relevant to begin by setting out in some detail the background that has led to the costs applications being brought, as well as the bringing and basis of the applications themselves.

6․On 12 February 2019, QD and LD were granted a divorce. On 25 June 2020, consent final orders were issued by the Federal Circuit and Family Court of Australia (FCFCOA) in relation to parental responsibility of their two children, along with property orders.

Protection Applications

7․An interim family violence order application was filed by QD on 19 July 2022. The application alleged that LD has a history of engaging in a variety of threatening, stalking, and coercive behaviours. The basis for this contention included contended occasions of a message, phone calls, and abusive social media that arose once QD re-partnered.  In addition, QD alleged that the children had reported to him that LD had called QD a “dickhead” and made disparaging and denigrating remarks about his new partner. QD further alleged an occasion in 2018 that whilst he was overseas, LD attended his home without permission and destroyed gifts. QD described feeling like he was walking on eggshells in his interactions with LD and that he constantly changed his behaviour because he was anxious as to LD’s response.

8․A recent incident of alleged stalking was said by QD to raise his concerns. QD described in the application that on 12 July 2022, his son disclosed to him that he had seen on LD’s iCloud account folders containing photos of himself and his partner at various events.  QD had a concern that a third-party had been enlisted to take photos of him and his new partner.

9․An application for a personal protection order was filed by MD on 19 July 2022. This application alleged that LD had engaged in a variety of stalking behaviours that are harassing, intimidating, and threatening. It is relevant to list in full the basis for this allegation, with MD stating that her understanding is that LD has –

1Photographed me or had other people photograph me at various school and sports events;

2Changed or attempted to change personal details with various healthcare and other providers;

3May have accessed my private medical information;

4Accessed my personal messages and correspondence;

5Interrogated my partner's children about my location and activities;

6Has approached other parents at my partner's children's school and told that I have mental health issues;

7Has obtained personal information about my children from their school;

8Has contacted my mother on social media;

9Has stated that my children are a threat to the respondents, that is the cost applicant's children;

10Has used my partner's children as a prop to try and intimidate me and to separate me from my new partner and his children;

11Previously followed me relentlessly on social media and sent critical messages to my partner and I in response to my posts.

10․Additionally, in the application, MD alleged, without a date reference, occasions when LD attended at QD’s house and damaged gifts, and one occasion when LD took a shirt which MD had gifted to one of the children and put the shirt on the family dog. MD further described the disclosure by one of the children as to the photographs on the iCloud account and she said that photography at various events led her to believe that third parties may have been enlisted by LD to photograph her. MD said in the application that, “I am worried that the respondent is stalking me physically and digitally.”

LD: Hearing

11․On the date that the applications were filed, the matters came before a Deputy Registrar. QD gave evidence as to the matters set out in the written application. This evidence included setting out his concerns regarding the photographs that his son saw on LD’s iPad. QD described that during a particular recent school event, he noticed a “parent taking photos of [MD] and us” but did not think anything of it until he heard from his son about the photos.  As far as he was aware, LD was not at the school event where the photographs were taken.  QD said that his son described there being a folder named “[MD]'s Instagram” or “[MD]'s insta.”  and that he was informed there were photos in that folder from what was a private Instagram account. QD gave evidence as to his suspicions as to how LD may have obtained these images. QD further gave evidence of a document being left at his house the day before and that he felt “constantly watched” and did not feel particularly safe from such conduct. He said that he “doesn't feel safe in my home”. The Deputy Registrar refused the application but referred the matter for review by a Magistrate in accordance with a request by QD for this to occur.

12․The matter went before a Magistrate later that day. QD again gave evidence. QD described again the circumstances in becoming aware of the photographs on 12 July 2022, as well as the other matters that caused him to have concern and were referred to in his written application.  QD said, “I feel like I'm constantly being monitored.  [LD] has sent me numerous emails that indicate she understands my whereabouts, where I'm located, what I'm doing, who I'm with.”

13․QD also gave evidence as to an incident where he alleges that LD called him 10 times in one night on an occasion when QD was at the apartment of MD, then his girlfriend.  This occurred some four years previously. QD said this was not the only occasion of there being what he described as “relentless phone calls”, with the most recent occasion being late last year or earlier this year.

14․In his evidence before the Magistrate, QD described there being “a lot of coercive behaviour” since the separation and that “one of the biggest concerns that I actually have is being isolated with her”.  He said that he has a genuine fear and that he always makes sure, for example, during changeover of the children at her house, that he has someone else with him as protection. The concerns as to his safety stem from what he described as coercive behaviours, which impact his mental state. He has become psychologically fearful of LD, as “she’s highly manipulative and extremely demanding and potentially physically as well”. QD gave examples of things the children have said to him that were of concern to him, and examples of things that LD’s mother had said about her behaviour as a teenager that caused him to, again use his words, to “have genuine concerns for the safety of the kids”. This portion of evidence from LD, from my observation of what is recorded as being said, demonstrates that it was measured and reasonable evidence of what he perceived, with him recognising that he knows the basis for that was from “a long time ago”.

15․QD otherwise expanded in his evidence before the Magistrate as to his basis for assertions that there has been family violence involving the children, referring to what he described as a relentless campaign for nearly five years to make denigrating comments about him and MD. He provided examples of the comments made by the children, contending that at least one of the children heard it from LD and that this circumstance was causing significant anxiety in his son, as well as impacting his own mental health.

16․The Magistrate did not require submissions on behalf of the applicant and found that:

I think it is appropriate for me to make the interim orders.  I do so noting the broad definition of family violence and what could be described as relentless psychological violence towards the applicant using the children as well.

MD: Hearing

17․MD’s application on the same day for a personal protection order was granted by the Deputy Registrar. The transcript reflects that there was a police officer acting in the capacity as a support person for MD during the hearing of her application. 

18․MD gave sworn evidence and confirmed the contents of her written application as true and correct to the best of her knowledge.

19․MD described the circumstances of the child coming to her on 12 July 2022 and their discovery in relation to the photographs on LD’s computer. MD described another occasion of this type from a Mother's Day event at the school.  MD’s evidence was consistent with what she had outlined in her written application.  She otherwise expanded on this information, providing the basis for why she thought LD had sought information about MD's own children and why she suspected conduct in relation to changes to personal details.

20․MD also gave evidence that she does not “feel safe in [my] own house” and that she is “terrified of her”.  She had concerns that if LD attended at MD’s residence, LD would be collecting more information about her, attempting to understand the pattern of her life.

21․In deciding to grant the application for the personal protection order, the Deputy Registrar said that:

I am satisfied there has been personal violence by way of intimidating and harassing behaviour, and I appreciate that [MD] feels monitored by the actions, or the alleged actions, of the respondent.

22․The protection orders that were issued contained what can be regarded as standard prohibitions.

23․LD affirms that she was served with copies of the applications, and that from 26 July 2022, her solicitors represented her in relation to these applications.

24․On 4 October 2022, LD, through her solicitors, sent correspondence to QD offering that he immediately discontinue his family violence order application, and putting QD on notice that an order under s 73 of the Family Violence Act2016 (ACT) would be sought for QD to pay the costs associated with her having to defend the family violence order application, which was estimated could be in excess of $20,000.

25․The evidence of LD is that on 3 November 2022, QD commenced further proceedings in the FCFCOA that sought a change to the final parenting orders.

26․On 10 November 2022, the family violence order application was listed for a pre-hearing conference. Resolution was not able to be reached and the family violence order application, along with the personal protection order application, were jointly listed for final hearing on 23 March 2023.  This listing was confirmed by the court on 10 November 2022, with the timing notice advising that QD intended to call 20 witnesses.  The solicitor for LD made enquiries to brief counsel.

27․On 22 February 2023, QD’s then lawyer sent correspondence to LD’s lawyers outlining an open offer to resolve both the family violence order and personal protection order applications.  It offered that LD enter into a 12-month undertaking, on a “without admissions” basis, in the terms of the orders. On 24 February 2023, LD instructed her lawyers to reject the offer and to reagitate the correspondence of 04 October 2022.  The correspondence on this date also purported to put QD on notice that if the matter proceeds to a hearing, or if the application was withdrawn after a period of seven days, an application for costs would be filed.  On 06 March 2023, QD’s lawyer declined the proposals.

28․Between 03 March 2023 and 07 March 2023, there was correspondence between the legal representatives relating to the filing and service of affidavit material.  The ultimate filing of QD and MD’s material for the applications was after the filing date.

29․On 20 March 2023, LD received correspondence from QD’s lawyers advising they had received instructions that MD had been admitted to hospital with a serious medical issue. Surgery was anticipated, with an expected recovery period of six to eight weeks.  It was indicated that a vacation of the hearing date would be sought and that the matter be listed on a future date. LD instructed her lawyers to respond, requesting medical documentation relating to MD’s medical needs and the impact of this on the court proceeding.

30․On 21 March 2023, LD’s solicitors were provided with a copy of MD’s medical certificate, which utilised the court form for such certificates. LD affirms in her affidavit that this certificate did not contain sufficient details and as such, she instructed her lawyers not to consent to an adjournment of the hearing. In correspondence informing QD’s lawyers of this, LD made an offer that if there is a withdrawal of the applications then there would not be costs application against QD or MD. On the same date, the affidavits affirmed by LD in relation to the family violence order and personal protection order applications were filed.

31․On 23 March 2023, QD’s legal representatives made an application for the matters to be adjourned due to MD's medical condition. This was granted by the court and the hearing was adjourned until 26 June 2023. LD further instructed her solicitors and had senior counsel briefed for the hearing.

32․On 22 May 2023, QD filed with the court the ‘Notice of discontinuance of a protection order proceeding’, an approved Form 11 under the Court Procedures Act 2004 (ACT). On 23 May 2023, a Deputy Registrar issued an order discontinuing the application and discharging the 19 July 2022 interim family violence order.

33․On 22 May 2023, MD also filed with the court a ‘Notice of discontinuance of a protection order proceeding’. On 23 May 2023, a Deputy Registrar issued an order discontinuing the application and discharging the 19 July 2022 interim personal protection order.

34․On 24 May 2023, LD’s solicitors received notification of the discharge of the orders from the court's protection unit. On the same day, LD became aware that QD and MD were no longer legally represented.

35․On 14 June 2023, LD instructed her lawyers to correspond with QD and MD in relation to settlement of costs. There was no response to this letter.

LAW

36․Turning then to the law that applies to this application.

37․The applicable sections are s 73 of the Family Violence Act 2016 (ACT) and s 67 of the Personal Violence Act 2016 (ACT). Both of these sections provide in subsection (1) that “Each party to a proceeding for an order is responsible for the party's own costs of the proceeding”. However, under subsection (2), the court may make an order about costs against the applicant, but only if satisfied the “application was vexatious, frivolous or in bad faith”. Both sections provide in subsection (3) that an application is not characterised as vexatious, frivolous or in bad faith only because it is made then discontinued.

38․The express terms of the section are such that there is a clear legislative intent that the proceedings are typically a no costs jurisdiction. The Explanatory Statement for the sections in each Act supports this, with it provided that costs orders are legislatively limited to prevent costs against applicants in protection order proceedings unless an application is frivolous or vexatious: see Explanatory Statement, Family Violence Bill 2016 (ACT) 23; Explanatory Statement, Personal Violence Bill 2016 (ACT) 18.

39․The lawyer appearing on behalf of LD, who, on my observation, has done nothing other than appropriately represent her client while meeting her obligations and duty to the court, submitted that there is limited case law in relation to applications for costs in family violence proceedings to assist in determining the meaning of these terms. Two authorities were provided – Langfied v Anderson; Anderson v Langfield [2023] ACTMC 25 and Stark (a pseudonym) v Hillam (a pseudonym) (No 2) [2022] ACTSC 272, but I have not found either of them to be of real assistance in determining the issues that arise in this matter.

40․I have otherwise had regard to Polleycutt v Taylor [2019] ACTSC 174, and Polleycutt v Taylor [2020] ACTSC 158, although these authorities are also not of real assistance here.

41․A decision of Connolly J in Arsenin v George [2003] ACTSC 33 (Arsenin v George) is, though, of some assistance. In that matter Connolly J was considering the issue of costs in the context of a protection order matter. The authority confirms the discretionary power for the court to contemplate a costs application even where there has been a withdrawal of a protection application. Further, it provides that establishing an application was frivolous, vexatious or dishonest, to use the statutory language that applied there is a “high threshold and will provide no protection for a person against whom an order was honestly, but perhaps mistakenly, taken out”: see Arsenin v George at [12] and [17], where the test is described as a “substantial hurdle to overcome”. Connolly J said that such an application involves considering, “to a degree the reopening of the merits of the order, at least insofar as it is sought to be shown that the original application was frivolous, vexatious or dishonest”: see Arsenin v George at [12].

EVIDENCE ON THE APPLICATION

42․Turning then to the evidence on the current application. In addition to that already outlined, there are additional relevant aspects to the evidence that go to the issue for determination on the costs application.

Evidence as to merits of applications

43․In terms of the merits of the applications, to the extent that this is relevant in accordance with what was said in Arsenin v George, I observe that LD, in her affidavit, states at the outset that, “in summary, [QD]’s allegations were that I had some photographs of [QD] and his current wife, [MD], on my personal devices and sometimes showed up at his house unannounced”.  A similar summary is made in respect to MD's application.

44․If this were the only basis for the applications, it might be concluded that the applications were “vexatious, frivolous or made in bad faith”.

45․However, the evidence establishes that the allegations by QD and those made by MD were more than what LD contends in her summary. This is borne out in the evidence placed before me from not only QD and MD but also by LD.

46․The affidavit material filed by LD on 21 March 2023 for the purposes of the list hearing of the matter sets out in detail LD’s responses to the allegations made. These extend well beyond the allegations of photographs and attending at the house. This material also addresses the allegations stemming back to 2018, with some 33 distinct events considered. The affidavit material of QD, to which LD was responding, sets out the allegations and attaches evidence relied upon of text communications, phone records and email correspondence.

47․Similar observations can be made as to the extent of the allegations and evidence relied upon in the affidavit material in respect to the application made by MD and the detailed response provided by LD.

48․It is unnecessary to address each particular alleged occasion of family and personal violence for the purposes of the costs application.  However, it is relevant to observe that LD does not deny all alleged occasions but does deny the characterisation of all conduct as being family or personal violence. It can be concluded that any determination of the actual merits of the applications would have focused, to an extent, on the alleged occasion, but seemingly, more so on whether such conduct amounted to family or personal violence.

49․Having said that, LD does strongly deny, overall, the allegations, and there is evidence, included in LD’s material, that could be regarded as compelling in terms of establishing that the conduct was not always as described by QD and MD. For example, there were seemingly occasions when there was non‑compliance with orders in terms of phone access with the children as the reason for the repeated phone calls, and a statement of LD’s mother provides a vastly different account of an occasion when LD attended at QD’s house to that contended by QD and MD.

50․I also observe in assessing the merits of the applications, to the extent that it is necessary to do so, that the decision by the Deputy Registrar to not issue an interim order for QD is not determinative of there being no merit in the application. This is particularly so as while the Deputy Registrar did state that the application “doesn't get me to safety”, as submitted by LD, the Deputy Registrar also stated that “I have no reason to doubt any of the evidence you have given me, and I accept that on the balance of probabilities that she, being the costs applicant, may well be fixated with you with an interest in your – have at least an interest in your new life”.

51․Further, during the initial decision, QD expressed to the Deputy Registrar that “I do have genuine concern for both myself and the kids”. The Deputy Registrar replied, “I don't doubt that, [QD], whatsoever. I don't doubt that. Well, I don't doubt – I would never doubt any parents love or concern for their family.” The Deputy Registrar expressed a hesitation in making an order when the jurisdiction of the FCFCOA was available to seek enforcement of orders but said, “you've come to the court for the right purpose but I'm also mindful these applications don't bring the communities back together.  They don't smooth over those problems.”

52․I otherwise observe that in the material relied upon for this application, QD and MD have placed additional evidence before the court relating to alleged further acts of family or personal violence, with LD denying these more recent allegations, at least in terms of the characterisation of the conduct as being family or personal violence.

Evidence as to why the applications were withdrawn

53․The next body of evidence that is relevant to the determination of the costs application relates to the decision to withdraw the applications.

QD

54․QD affirms in his affidavit that –

(a)In the course of the application he made, he was supported by a police officer following having made a complaint to police as to the allegations. QD understands the police investigation to be ongoing;

(b)An offer was made to LD to enter into a 12‑month undertaking on a “without admissions” basis.  This offer was made to avoid further litigation and to reduce the risk to the children in circumstances where QD describes that the children had reported an escalation in LD’s behaviour since the interim orders were issued.  This offer was rejected by LD and the counter‑offer as outlined above was made and subsequently refused;

(c)The circumstances in which the adjournment request was notified and responded to led him to be concerned that there was a “callous exploitation of the legal system to further violate [MD]’s privacy”;

(d)At the hearing where the adjournment was sought, it was foreshadowed that there would be a subpoena issued of MD’s medical records, and that counsel for LD, a senior counsel, said to QD’s legal representative that, “we are ready to go. It will be a brutal cross‑examination.”  QD considered this to be an attempt to “threaten and intimidate us”, which “did nothing to alleviate concerns that the legal process would be exploited to further perpetrate family violence”;

(e)MD, when informed, became distraught when there was a prospect of her medical records being subpoenaed. The medical advice they had was that stress was detrimental to MD’s health. This, along with the children's reports of escalating violence in their mother's care, led QD and MD to believe that their only option was to discontinue the proceedings; and

(f)QD affirms that in his view, the family and personal violence is ongoing but that it is more unsafe to pursue final orders.

55․QD summarises the basis for his decision to discontinue as being, “we were fearful the legal system was being abused to perpetrate further harassment and intimidation” and that “our legal team agreed we should prioritise [MD]’s health and wellbeing; and the safety and wellbeing of me and the children”.  QD withdrew instructions from his lawyers, and on 23 March 2023, submitted the Notice of Discontinuance.

MD

56․MD, in her affidavit, affirms in summary that she withdrew the application as she suffered “serious health issues that make it untenable to continue with the proceedings”.  She has been hospitalised on more than a dozen occasions this year and underwent another major surgery as recently as 09 August 2023.

57․MD maintains that personal violence has, and continues to be, perpetrated by LD towards her, but says that she is fearful of the process being used to further threaten, harass and intimidate her at a time when she is not physically or emotionally capable of enduring such stress.

58․In terms of the decision to bring the application, MD describes this being made following a police interview, and that a police officer who expressed an intention to seek advice from the “fixated persons unit” provided support during the initial application. MD understands the police commenced an investigation in relation to her concerns and that this investigation remains ongoing. Further, MD was assisted by Legal Aid in preparing her application for the protection order.

59․Otherwise, MD affirms in her evidence as to the medical issues that caused her to require an adjournment which, given the seriousness of the medical concerns, appears a credible reason. MD has recently been retired from the workforce on medical grounds and faces further serious medical interventions this year.

60․The response to the concerns raised at the initial hearing, which, while not detailed to the extent now known to the court, were supported at the time with a relatively detailed medical certificate.  This certificate was responded to in a manner which caused concern to MD. That response, along with the concerns as to the impact on the children, formed the basis for the decision to discontinue the application.

61․MD describes concluding that the ”very process intended to protect” her was being used to further intimidate, stalk and harass her, and that this was the principal reason that she withdrew her application.  It was felt that there was no other option if they were to protect her health and wellbeing and minimise the danger to the children.

62․I have been cautious in reaching my conclusion to recognise that what is contended against LD are allegations, and that any person appearing in any jurisdiction of the courts is appropriately entitled to vigorously defend accusations with the full force that our legal system permits. However, I must take the circumstances of of the withdrawal of the application into account, recognising all of the evidence before me for the purposes of this application.

FCFCOAProceeding

63․There is one aspect to the evidence that I have been particularly careful to consider closely.  This relates to the timing of the filing of an application by QD in the FCFCOA. LD contends that the motivation of the filing of the protection applications was to gain advantage in the family law proceedings.

64․The evidence of LD is that on 03 November 2022, some months after the protection orders were filed, QD commenced further court proceedings in the FCFCOA that sought a change to the final parenting orders.

65․QD denies that the protection applications were made to support the FCFCOA applications. He describes that this application pertains principally to passports, and emphasises that there was an offer to resolve that application with the correspondence sent by his legal representative dated 23 February 2023 included in the evidence. This correspondence is consistent with MD’s evidence that the focus of that application was related to the passports, while also demonstrating that it related to the medical arrangements for the children and a desire to introduce a parenting coordinator. MD further affirms that the FCFCOA matter was discontinued at the same time as the protection applications.

66․I do not conclude that the institution of the FCFCOA proceedings at and around the time of the protection applications is indicative of the protection applications being instituted to support MD’s FCFCOA application. In particular, the legal correspondence is consistent with there being an intent to achieve an effective and non-combative

co-parenting arrangements.

67․One other aspect of the evidence in this matter is that QD and MD otherwise describe the circumstances in which the costs application was served as occurring at a time within the days following QD’s mother having unexpectedly died in June 2023. While I do not conclude that the circumstances of this were not necessarily more of a reflection of the, again, regrettable nature of legal procedures, the circumstances as described in their evidence does provide a level of support for QD and MD’s contention that the legal proceedings have been used to continue a perpetuation of alleged family and personal violence.

CONSIDERATION

68․I conclude that the nature of the allegations, the extent of the evidence relied upon, and the apparent issue being more directed to whether the conduct was family or personal violence, is not consistent with a frivolous, vexatious or application brought in bad faith.  To draw comparison with the type of application that would be regarded as vexatious, frivolous, or in bad faith, the application is one without any evidentiary basis. That is not the circumstance here.

69․Further, the contended ongoing acts of family or personal violence for which there is an evidentiary basis provided are inconsistent with the protection applications lacking merit. 

70․This conclusion is not a conclusion that the conduct occurred as alleged, that is, it is not a decision that family or personal violence occurred. Rather, I conclude on the evidence before me that neither QD nor MD were making the allegations from a place without basis, at least with reference to documentary evidence in the form of the phone records and emails, and from their own experiences and things they were told by the children. Both QD and MD demonstrated from their evidence in the interim applications that they were being measured and reasonable and not making entirely implausible or baseless claims.

71․I find that the explanations given by both QD and MD as to the reasoning for bringing the applications are plausible. It is clear on the evidence before me that their intent was to address longstanding concerns they had as to the alleged conduct of LD, with this extending to their concerns as to the impacts on the children.

72․I also find that the explanations given by QD and MD as to the discontinuance of the applications are credible, reasonable, and understandable in the circumstances. The reasons given are, regrettably, not implausible given the strain that any form of litigation brings on persons who come before the courts and the explanation given for discontinuance, which I do accept, reflects the veracity of their initial decision to bring the applications they did. 

73․I make this finding without reaching, nor needing to reach, a conclusion as to the final merits of the protection applications brought. Rather, the explanations served to strengthen QD and MD’s positions as to the applications not having been brought on a vexatious, frivolous, or bad faith basis.

74․To again draw comparison with the type of application that would be regarded as vexatious, frivolous, or made in bad faith, this is quite distinguishable from a decision to withdraw that concedes, accepts or is based on an establishment that the application was made without basis or merit. 

75․Protection order proceedings are, by default, no-cost proceedings. No doubt, this is because there is a sound policy in not dissuading vulnerable people of little means in bringing applications that have merit.  Equally, though, I accept that the Family Violence Act 2016 (ACT) and the Personal Violence Act 2016 (ACT) provide what might essentially be called an exception to the default basis, that applications that are brought on a vexatious, frivolous, or bad faith basis can be subject to a costs application and an order for costs. This is, no doubt, because there is a sound policy in deterring such applications being brought, and an appropriate remedy ought to be available for a respondent to such an application.

76․However, what has occurred here is not an example of a vexatious, frivolous, or bad faith application. While I do not make a finding as to the ultimate merits of the applications, I do find that QD and MD have established that they brought the protection applications for genuine and credible reasons.

77․LD chose to engage legal representation and to bring, and essentially threaten, costs applications in a default no-cost jurisdiction.  That is a choice made by LD and it is a choice that does not guarantee that the costs will follow the outcome, even where the outcome is a discontinuance by withdrawal of the applications.  That must be particularly so where the reasons for the withdrawal only serve to confirm that the protection applications were not vexatious, frivolous or in bad faith.

ORDERS

78․The orders of the court are as follows –

(a)The application filed 25 July 2023 seeking that QD pay LD’s costs is refused.

(b)The application filed 25 July 2023 seeking that MD pay LD’s costs is refused.

OBSERVATIONS

79․There is one final observation I would like to make. What is abundantly clear on the evidence before me is that the parents and stepmother of the children love and care deeply for the children and that they all ultimately hold a motivation to do what is in the best interests of these children. There are text messages between LD, and QD and MD from the earlier times that are consistent with a level of conciliary communications, suggesting a capability for less hostile communications for the purposes of the

co-parenting that has many years to come. 

80․This court outcome will, no doubt, be another example of one side of this ongoing dispute being disappointed and frustrated. An experience that, no doubt, both sides have experienced throughout the court disputes that have occurred in respect to these children. It seems apparent to me that the court processes have, once again, regrettably, done nothing to reduce those challenges.

81․All that this court can offer at this time is the hope that all sides find a way to return to these more conciliatory and understanding communications, and that the parties’ energies are put into demonstrating their love and care for the children through a focus on the children’s ongoing best interests. This appears to be the one position that is, despite all of the challenges that separation and re-partnering brings, a shared one that gives hope that a way can be found to bring the focus back to the best interests of the children moving forward.

I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of a revision from a transcript of the oral reason for decision of her Honour Special Magistrate Christensen delivered in court.

Associate: Susie Kim

Date: 20 May 2024