Mahoney
[2025] FedCFamC1A 70
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mahoney [2025] FedCFamC1A 70
Appeal from: Mahoney & Dieter (No 4) [2024] FedCFamC1F 813 Appeal number: NAA 350 of 2024 File number: MLC 4348 of 2020 Judgment of: RIETHMULLER, CAMPTON & CHRISTIE JJ Date of judgment: 17 April 2025 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious Proceedings – Application for leave governed by s 102QE of the Family Law Act 1975 (Cth) – Where the orders the applicant seeks to challenge are not materially different from the applicant's own minute of order – Where the applicant advances no reasonable grounds for the proposed appeal – Where the proposed appeal is vexatious and the application for leave to appeal must be dismissed – No orders as to costs. Legislation: Family Law Act1975 (Cth) ss 102Q, 102QAC, 102QAG, 102QB, 102QE, 102QF Cases cited: Forbes and Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Mahoney & Dieter (No 4) [2024] FedCFamC1F 813
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 30 Date of hearing: 3 April 2025 Place: Heard in Melbourne, delivered in Parramatta First Applicant: Litigant in person Second Applicant: Litigant in person (did not participate) ORDERS
NAA 350 of 2024
MLC 4348 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONMR MAHONEY
First Applicant
MS MAHONEY
Second Applicant
ORDER MADE BY:
RIETHMULLER, CAMPTON AND CHRISTIE JJ
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 13 December 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahoney has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER, CAMPTON & CHRISTIE JJ:
This is an application for leave to appeal against parenting orders and orders which were made under s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) by a Justice of the Federal Circuit and Family Court of Australia (Division 1). The first applicant is Mr Mahoney (“the stepfather”) and the second applicant is Ms Mahoney (“the mother”). The stepfather appeared on the hearing of the application as a litigant in person. There was no appearance by the mother.
The applicants need leave by reason of the making of the orders under s 102QB(2)(b) of the Act. The application is made pursuant to s 102QE of the Act.
The affidavit in support of the application must comply with the section.
Consistent with s 102QE(4) of the Act, there is no respondent to the application for leave.
THE TRIAL
The primary judge heard and determined an application for parenting orders concerning X (“the child”) born in 2011. Final orders had been made in New Zealand proceedings following X’s removal from the applicants’ care. On 7 April 2017 (revised on 28 August 2018), orders were made placing X in the care of her father.
On 28 November 2024, final parenting orders were made in Australia which provide, amongst other matters, for X to live with her father in Australia and spend supervised time with the applicants in New Zealand.
Orders 18 and 19 were as follows:
18.I DECLARE that the Contravention Application filed on 4 February 2021 is a vexatious proceedings as prescribed by s 102QB(1) of the Family Law Act 1975 (Cth) (“the Act”).
19. Pursuant to s 102QB(2)(b) of the Act, the mother and stepfather jointly and/or severally be and are hereby prohibited, for a period of four years, from commencing proceedings in any court having jurisdiction under the Family Law Act 1975 with respect to: -
(a) the parenting of [X]; and/or
(b)the enforcement of any parenting order made by this Court with respect to [X]; and/or
(c)any alleged contravention of any parenting order made by this Court with respect to [X]; and/or
(d)a contempt application against the father;
without first obtaining the leave of the Court as prescribed by s 102QG of the Family Law Act 1975 and any such application made by the mother and stepfather or either of them is not to be served on or otherwise brought to the attention of the father until and unless the Court directs otherwise.
The applicants themselves had sought an order:
6. The Applicants shall require the leave of the Court for any application with respect to the parenting of [X].
Consistent with the position of the applicants and the father, the primary judge made Orders 18 and 19. The making of those orders necessitates the present application.
THE APPLICATION IN A PROCEEDING
The applicant filed an Application in a Proceeding on 13 December 2024. It is well settled that unless the order made under s 102QB of the Act explicitly excludes or carves out appeal proceedings then the order will apply to appeal proceedings: Pencious & Searle (2017) FLC 93-805 at [77]–[88].
The applicant, in written submissions and at hearing, referred to s 102QAG of the Act as the basis upon which the Court would grant leave. In that regard he was mistaken, as s 102QAG applies where an order has been made under s 102QAC of the Act (a harmful proceedings order).
Section 102QF(1) permits this Court to dismiss the application for leave if the affidavit in support does not substantially comply with the section.
Section 102QF(2) requires this Court to dismiss the application for leave if the proceedings themselves are vexatious.
The affidavit in support of the application complies with s 102QE(3)(a). Annexures D and E of the affidavit comply with s 102QE(3)(b).
To more fully comply with the requirements of s 102QE(3)(c), it would have been appropriate for the affidavit to have canvassed proceedings in New Zealand which involved both applicants.
In any event, we do not propose to dismiss the application in reliance upon s102QF(1) of the Act.
Is the proceeding vexatious?
Section 102Q provides a definition of “vexatious proceedings”:
102Q Definitions
…
vexatious proceedings includes:
(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.
There are a number of factors which persuade this Court that leave should be refused.
We record here the individual applications by the applicants between 14 November 2017 and the present (taken from the annexures to the applicant’s 13 December 2024 affidavit in support of leave (21 in total)):
Application for final orders filed 14 November 2017;
Application in a case filed 14 November 2017;
Application for Contravention filed 10 May 2018;
Notice of Appeal filed 16 July 2018;
Application in an Appeal filed 9 August 2018;
Application in an Appeal filed 17 September 2018;
Application for final orders filed 12 April 2019;
Application in a case filed 12 April 2019;
Application in a case file 12 May 2019;
Notice of Appeal filed 25 September 2019;
Application in an Appeal filed 31 October 2019;
Application for final orders filed 2 May 2020;
Application in a case filed 2 May 2020;
Application in a case filed 14 June 2020;
Contravention Application filed 4 February 2021;
Application in a case filed 27 June 2021;
Application in a case filed 26 September 2021;
Notice of Appeal filed 3 November 2021;
Application in a proceeding filed 28 November 2021;
Application in a proceeding filed 6 March 2022;
Application in a proceeding filed 14 January 2024.
Before the primary judge, the applicants consented to an order which would impose on them the requirement to obtain leave. We reject the submission that they sought that order because of any action on the part of the primary judge.
The proposed Notice of Appeal indicates that if leave were to be granted, the applicants would appeal from all the orders of the primary judge in circumstances where the scope of the dispute before the primary judge was extremely curtailed.
The primary judge recorded that the orders sought by the applicants changed over time. When the proceedings commenced, they sought (as they had sought previously) that orders be made providing that X live with them in New Zealand. However, at the trial the orders sought by the applicants were contained in Exhibit M22, which provided that the X’s time with the applicants decrease and remain supervised.
It is apposite to identify the areas of dispute which remained for adjudication by the primary judge having regard to the parties’ applications:
(a)The applicants sought equal shared parental responsibility between the mother and the father, while the ICL sought an order that the father have sole parental responsibility and the father sought an order that he have sole parental responsibility except in respect of X’s name, religion and moving outside Australia. The primary judge ordered that the father have sole parental responsibility for all matters except religion, the effect of which was that the parental responsibility for any decisions concerning religion may be exercised jointly or severally by the father and the mother.
(b)The applicants sought an order that X live with the father provided he lives with the paternal grandmother. The father sought an order that X live with him simpliciter.
(c)The applicants sought an order that X spend supervised time with them in New Zealand for three sessions of eight hours over three consecutive days. The father’s application was for two sessions of six hours duration. The primary judge ordered two sessions of eight hours duration.
(d)The applicants sought communication twice a week for 20 minutes. The primary judge made that order and also provided for X to spend additional time with them for special occasions.
(e)The applicants sought an order that X’s name be changed to include the father’s surname, conditional upon the father forgiving outstanding child support. The primary judge made the order to change X’s name without condition.
As is plain from the above analysis, the orders from which the applicants seek leave to appeal were made largely in accordance with the proposal they put forward and no grounds of appeal (except perhaps Ground 14) are specifically targeted to the making of orders which departed from their proposed minute of order.
The applicants foreshadow seeking orders, if the appeal is allowed, for “new interim orders…in respect of contact”. Having sought orders to spend time with X and obtained orders to spend time with her, the Notice of Appeal foreshadows that different (unspecified) orders for time with X (as opposed to live with orders) would be sought if the appeal were successful.
It is necessary for us to consider the merits of the proposed appeal, as presently indicated by the documents filed. In that regard, we note that a draft Notice of Appeal was attached to the affidavit filed in support of leave on 13 December 2024. The grounds of appeal in that document appeared to have been superseded by those in the proposed Notice of Appeal attached to the affidavit filed on 18 March 2025 following which further amended grounds were foreshadowed in a written submission filed 31 March 2025.
The appeal is not directed to any identified error in the making of orders, which were ultimately largely agreed. Based on the written submissions it appears as though the applicants do not intend to pursue Grounds 3, 4, 6, 12 and 15. The remaining grounds are in the main concerned with collateral issues such as the first applicant’s concerns about reputational damage (Grounds 1 and 5), and a continued fixation with public acknowledgment of the applicants’ narrative concerning X’s conception (Ground 13).
We have considered the remaining grounds. Ground 2 asserts procedural unfairness and/or error of law in the manner in which the primary judge approached the material in the New Zealand proceedings involving X. We are satisfied that the material was properly before the primary judge (the parties having agreed to its provision at [10]) and no procedural unfairness was occasioned. Ground 7 asserts procedural unfairness to the mother as a “vulnerable person”. We are comfortably satisfied that the primary judge made significant accommodations in the trial to take into account the needs of the mother, see [77]–[84]. It is not sufficient for the applicant to make a contrary contention and assert that transcript would support same. Grounds 8, 10, 16 and 17 assert procedural unfairness and actual bias through excessive judicial intervention, the lengthy trial process and the role of the paternal grandmother as non-party. It is not sufficient for the applicants to merely assert these matters; it is for them to demonstrate the matters asserted by reference to admissible evidence. They have failed to do so. To the extent that the applicants submitted that they would be able to do so with the benefit of transcript, we are not satisfied that they have established that this is an “exceptional case” such that the court would order the provision of transcript at the court’s expense: Forbes and Bream (2008) 222 FLR 96 at [35]–[36], or that, given the “finite public purse”, the interests of justice would require the making of an order for provision of transcript: Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [83]. Ground 9 misunderstands the obligations of the judicial officer. Ground 11 is misconceived given the applicants did not seek an order for “bookended supervision”. Ground 14 is misconceived since the issue of whether or not the father had withheld information from the applicants (even if decided wholly in accordance with the applicants’ contention) could not have changed the decision about parental responsibility given the lack of any cooperative communication necessary to facilitate an order for equal shared parental responsibility and consequently cannot be regarded as a failure to consider a material factual matter.
If leave were granted, we are satisfied that none of the proposed grounds of appeal would have merit and accordingly the Notice in an Appeal meets the definition of vexatious proceedings in s 102Q(1)(c) of the Act. Further, as outlined above, we are satisfied that some of the grounds as articulated are advanced for a wrongful purpose as contemplated by s 102Q(1)(b) of the Act.
Accordingly, leave is refused.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Riethmuller, Campton, and Christie JJ. Associate:
Dated: 17 April 2025
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