Mahoney & Anor and Dieter
[2020] FamCA 667
•14 August 2020
FAMILY COURT OF AUSTRALIA
| MAHONEY AND ANOR & DIETER | [2020] FamCA 667 |
| FAMILY LAW – PRACTICE AND PROCEDURE – whether the failed contempt application prosecuted by the applicants against the respondent ought to be regarded as a vexatious proceeding |
| Family Law Act 1975 (Cth) |
| Rice & Asplund [1978] FamCA 84 |
| FIRST APPLICANT: | Mr Mahoney |
| SECOND APPLICANT: | Ms Mahoney |
| RESPONDENT: | Mr Dieter |
| FILE NUMBER: | MLC | 4348 | of | 2020 |
| DATE DELIVERED: | 14 August 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 20 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE SECOND APPLICANT: | In person |
| SOLICITOR FOR THE SECOND APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Ms Harris |
| SOLICITOR FOR THE RESPONDENT: | Melbourne Family Lawyers |
Orders
The Application in a Case filed by the First Applicant Stepfather and Second Applicant Mother on 14 June 2020 was instituted and conducted as a vexatious proceeding within the meaning of s 102(Q)(1) of the Family Law Act 1975.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahoney & Dieter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4348 of 2020
| MR MAHONEY |
First Applicant
And
| MS MAHONEY |
Second Applicant
And
MR DIETER
Respondent
REASONS FOR JUDGMENT
Introduction
An application for the father to be dealt with for contempt came before me in the judicial duty list, on the court’s Microsoft Teams platform, and was dismissed. At the conclusion of the hearing, I reserved my decision as to whether the failed contempt application prosecuted by Mr Mahoney and the mother, Ms Mahoney, against the father Mr Dieter ought to be regarded as a vexatious proceeding. These reasons explain why I have decided that failed contempt application is a vexatious proceeding within the meaning of s 102Q(1) of the Family Law Act 1975 (“the Act”).
Relevant history
X was conceived as the result of an extra marital relationship between the mother and the father, Mr Dieter. At all material times, Mr Mahoney was and remains the mother’s husband and partner in life. He is X’s stepfather. He has assisted the mother in all the parenting proceedings between the mother and the father by paying all costs and acting as the mother’s McKenzie friend up until recently when he has made himself a party to parenting proceedings in his own right.
The parenting proceedings concern X who is aged 9 years. The proceedings have an extensive history in New Zealand, commencing in 2014, and also in Australia.
X initially resided in the primary care of the mother and the stepfather until she was removed from their care by child welfare authorities in New Zealand and placed in foster care. There were fully contested parenting proceedings in New Zealand between the father and the mother, who was assisted by the stepfather. Those proceedings concluded on 24 March 2017 and judgment was delivered by Judge J F Moss on 7 April 2017. The opening paragraphs of her Honour’s reasons for decision read as follows:
[1][X] is now nearly 6. Her Australian father and New Zealand mother have been embroiled in litigation about her since 2014. Earlier judgments detail the extreme struggle for the father to play a role in [X’s] care. He originally sought reasonable contact and spent two years, with the careful thoughtful support of his mother trying to achieve that, without litigation. The two years from the issuing of the proceedings were spent trying to establish reasonable contact, and ended with [X] transferring into his care having never previously had any relationship with him. The transfer was necessary for the welfare and safety of [X] because of the mother’s intense fixed and wrong beliefs about the father’s behaviour in her relationship with him. These beliefs are not related to his parenting of [X]. If [X] learns about these beliefs the damage to her will be adverse and lifelong.
[2]In earlier episodes in the litigation it was necessary to traverse the mother’s allegations against the father. My judgments of June and November 2015 record the detail of the allegations and the court’s conclusion in relation to them. Despite the court concluding that the allegations were fabricated, the mother continues vehemently to believe them. Her reporting of allegations has escalated in seriousness. The effect of the litigation and the repeated allegations since the courts determination has been to make the current litigation unusually adversarial and at times extremely hostile. Another effect of the background of the adult relationship has been that the father is so frightened and disturbed about the effect of the mother’s continuing allegations against him that his reactions to the mother’s attempts to exercise the ordinary role as an informed guardian of the child would have been wholly frustrated, leading to a clear impression that the hostility of the father is now worrying contributing factor to the threat of the child’s welfare. The overall effect of this dynamic is to propel the parents into a style of litigation which is rarely seen in this century, and which contributes nothing to the well-being of the child.
[…]
[4][…] The mother believes that the father was sexually and physically violent to her, leading both to a lasting head injury and conception [of X] by rape, and she believes that the father is sexually deviant, and a risk to children. These are beliefs which continue to have effect because the mother and stepfather are extremely focused in their contact with [X] on whether she is safe, and whether her father and his family have done something wrong to her. The mother also continues to bolster her belief in the history of the relationship by manipulating the use of documents created for one purpose by using them in another context. This behaviour contributes to the father’s realistic fear that the mother will repeat and elaborate allegations of his violent and deviant behaviour to others.
Moss J ordered that the father have day to day care of X and he be permitted to relocate X’s residence to Australia after 27 April 2017 (which he did). The Final Order provided for the father to return X to New Zealand each school holiday for two face to face contact visits with the mother of not more than three hours each. The mother’s time with X was ordered to be:
…professionally supervised, by a person who has sufficient background to the complexities of this matter that that person can have an understanding of the dynamics and risks. […] Ms Mahoney is to fund the supervision, Mr Dieter will fund [X’s] travel.
Skype communication was also ordered to be supervised by the paternal grandmother.
The mother appealed Judge Moss’ decision. Moss J’s decision at first instance was upheld and the mother’s appeal was dismissed.
In Australia, there was a further hearing, on a parenting application initiated by the mother filed on 14 November 2017 in proceedings No. (P)MLC11835 of 2017. The mother’s application sought final orders for her to have day-to-day care of X, the child X to be relocated to reside at the mother’s home at K Street, City H in New Zealand, unspecified orders for Skype contact and for the father to have access as determined by the Court. The mother also sought a raft of interim order including a discharge of the orders for supervision of the mother’s time and X spend time with the mother for three weeks during the summer vacation and one week in each other school holiday.
The mother’s application filed 14 November 2017 was dismissed by Austin J on 27 June 2018. His Honour found that the mother had failed to demonstrate a change of circumstances sufficient to require the matter to be re-litigated before our court, consistently with the rule in Rice & Asplund. [1]
[1] [1978] FamCA 84.
The mother appealed Austin J’s decision. Austin J’s decision was upheld and the appeal was dismissed on 7 March 2019. [2]
[2] [2019] FamCAFC 39.
On 12 April 2019, the mother filed a further Initiating Application in which she sought the same final orders as those sought in the application which Austin J dismissed, save that the relocation was sought “to [City H]” rather than to reside at a specific address in City H (it appears that the mother and stepfather had moved residence to L Street, Suburb M in City H). The mother sought twice as much interim time with X, being six weeks during the long summer school vacation and two weeks in each term holiday.
The second parenting application, which was filed about five weeks after the previous appeal was determined, came before Hartnett J in the Judicial Duty List on 14 August 2019. The respondent father sought that the application be summarily dismissed and relief under the vexatious proceedings provisions of the Act. On 16 September 2019, her Honour dismissed the second parenting application. [3] That dismissal rested to no small degree on the mother’s failure to make out a case having regard to the rule in Rice & Asplund. Paragraphs [56] to [58] of her Honour’s reasons for decision contain the following observations: [4]
[3] [2019] FamCA 633.
[4] [2019] FamCA 633.
56.The change in circumstances to which the mother alludes include that:-
a) the child’s present circumstances represent a change for the worse which was beyond the reasonable contemplation of the original decision-maker;
b)the child’s growing awareness of her present circumstances represents a change for the worse and is causing her distress;
c)“[the mother’s] deteriorating financial circumstances represents a change (because [she] can no longer afford to pay for professional supervision)”;[5] and
d)“[the mother has] worked on [her] parenting-style, atunement, attachment and with [Mr D] on coparenting-strategies. [She] have gained a degree of insight into [her] parenting behaviour, mistakes [she] made in the past and the strategies [she] can employ to avoid similar issues in the future. This represents a substantial and identifiable change in circumstances since the earlier order was made”.[6]
57.The Court rejects the submissions of the mother. There is no evidence before the Court including any deterioration in the child’s physical or mental health that suggests there is a change of such significant magnitude as to warrant the commencing of further proceedings as to the parenting of the child.
58.The mother’s brief time spent with, and exchange with, [Mr D] does not indicate the mother has worked on her parenting style to any significant degree. In particular, in the context of her own affidavit material. Her own evidence is indicative of poor co-parenting strategies as is her pursuit of the litigation at this time. Over a long period of time, and supported by professional input, there might be progress. But it is not evident now. The mother has no reasonable cause of action.
[5] Submissions of Ms Mahoney dated 14 August 2019, [37]
[6] Submissions of Ms Mahoney dated 14 August 2019, [56]
Before Hartnett J, the father also contended that the mother’s second unsuccessful parenting proceeding was vexatious. Hartnett J declined the relief sought by the father. In her Honour’s judgment delivered on 16 September 2019 as [2019] FamCA 633 her Honour stated:
59.The father has sought a vexatious proceedings order against the mother on the basis that over the past five years, since 2014, she has filed a significant number of applications and a large number of supporting affidavits and written submissions and annexures to her materials, both in New Zealand and, since 2017, in Australia. These include more recently a contravention application filed by the mother which, before Austin J, she withdrew.
60.Section 102Q of the Act defines vexatious proceedings as including, relevantly:-
…
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground;
…
61.In 2015 the child was removed from the mother’s care. In 2017 final orders were made. The mother sought to change those in late 2017 and that proceeding was unsuccessful. These proceedings arose because the mother better understood the reasoning behind the 2017 final orders made in the New Zealand court. The proceedings are premature, but they do not rise to the level of vexatious and in particular in the context of the litigation history. If the mother were to institute further proceedings, not being of an appeal nature, and very soon in time to the conclusion of these proceedings, the application of the father will have a stronger basis.
The mother appealed Hartnett J’s order dismissing the substantive parenting proceedings. That appeal was dismissed by the Full Court on 21 April 2020. [7] As Mr Mahoney deposes in his affidavit sworn on 1 June 2020:
[49] […] The Full Court declined to intervene, quoting (with approval) in paragraph 35 the following passage from Marsden and Winch:
“Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material”
[7] [2019 FamCA 633
On 2 May, 2020, the stepfather and the mother filed a further Initiating Application in this proceeding No. (P)MLC4348/2020 as joint applicants seeking parenting orders. This was less than two weeks after the second Australian appeal had been decided. In the further Initiating Application, the stepfather is named as the “first applicant” and the mother is named as the “second applicant”. The stepfather and the mother now seek the following orders:
1. Declaration that the correct interpretation of current parenting orders does not require contact between Mr Mahoney and the child [X] to be professionally supervised.
2. New (or varied) parenting orders setting out: details of the extent, locale, frequency and funding of supervision (if this is required to ensure the child's safety with either parent); stating who is responsible for arranging supervision sessions; the date when supervision requirements are to be reviewed; and the mechanism for such reviews.
3. New (or varied) parenting orders to specify the frequency and duration of Skype communications between child and either parent.
4. New (or varied) parenting orders to specify the frequency and duration of contact with wider maternal or paternal family, including half-siblings.
5. Declaration that Mr Dieter has breached his guardianship obligations: by failing to provide medical and schooling information in respect of the child X over the period April 2017 to date.
6. New (or varied) parenting orders requiring Mr Dieter to provide all medical and schooling information in respect of the child [X] on an ongoing basis.
7. New (or varied) parenting orders requiring Mr Dieter to consult with other guardian (or guardians) in respect of all medical and schooling decisions regarding the child X on an ongoing basis and setting out the parameters of that consultation.
8. New (or varied) parenting orders to account for travel restrictions occasioned by the COVID-19 pandemic, in particular, the imposition of travel bans and quarantine periods.
9. Order appointing Mr Mahoney as an additional guardian of the child [X] (either in his own respect or as the authorised agent and proxy of the mother Ms Mahoney).
10. New parenting orders setting out custody and access arrangements in respect of the child [X], including place of residence.
11. In the event that this Honourable Court determines that the child [X] should reside in New Zealand, orders for relocation of the child to New Zealand.
12. Costs (including all costs occasioned by Mr Dieter withholding relevant information from the Court during previous proceedings).
The joint parenting application of the mother and stepfather is still on foot. The stepfather has requested that it be considered for the COVID-19 List because the face to face time in New Zealand has not occurred due to border closures for the pandemic. Before me, the stepfather stressed that the assessment of X by N Health Service dated 16 April 2020,[8] is a significant document in relation to the Rice & Asplund point. The stepfather urged me to progress the application today but I declined to do so as we had already sat later than regular court sitting hours to conclude the contempt application in the Judicial Duty List. I did, however accede to the application to request the appointment of an Independent Children’s Lawyer. I am doubtful that an Independent Children's Lawyer will be appointed given the tight guidelines for qualification for appointment consequent on the current budget restraints imposed on Victoria Legal Aid. However, I will leave that decision to Victoria Legal Aid as the funding authority responsible for appointing (or not appointing) Independent Children's Lawyers. If an Independent Children's Lawyer is appointed he/she should be prepared address the Rice & Asplund point from X’s perspective.
[8] Annexure “A” to the affidavit of Mr Mahoney sworn 2 May 2020 (page 24)
Returning to a consideration of whether the contempt application brought by the stepfather and mother is vexatious, I have considered the extent to which the stepfather has been a significant force behind the mother’s failed applications. The stepfather’s lengthy affidavit sworn on 2 May 2020[9] makes it clear that he has enabled the mother to make her various applications, that he has been personally invested in the litigation and the outcomes sought by the mother. For example, the stepfather swore:
[9] Affidavit of Mr Mahoney filed 2 May 2020 – affidavit of 23 pages and Annexures of a further 123 pages.
[2]I helped raise [X] for the first four years of her life, along with Ms Mahoney, because Mr Dieter was largely absent from her life. I had a year off work when X was between three and four years old, which helps account for my closeness with [X]. The New Zealand Court’s expert witness, [Ms F], observed that I was [X’s] primary attachment figure, which is not surprising, because as a highly intelligent child [X] gravitates to adults with high intelligence.
[…]
[8]Mr Dieter sought custody of [X] in a series of proceedings beginning in 2014. In the course of those proceedings it was alleged by Ms Mahoney that [X] had been conceived by rape. The proceedings were bitterly contested and had the effect of breaking up an intact nuclear family: by removing [X] first into foster care; then into Mr Dieter’s sole care in New Zealand; and finally by allowing [X] to relocate with Mr Dieter to Australia. As a stepfather and (until now) non-party, my ability to have input into the conduct of the litigation in New Zealand and Australia has previously been limited to appearing as a witness or a McKenzie friend.
[…]
[12]I seek declarations from the Court as to the correct interpretation and parameters of the current parenting order. My wife is seeking for those orders to be varied or replaced.[…]
[13]Ms Mahoney does not earn an income. Annexed and marked ‘M’ is a financial statement filed by Ms Mahoney in July 2019. I am the person currently paying for supervised contact. The question of who should pay for supervised contact is a matter the parties have not been able to resolve independently. I feel that I am being emotionally blackmailed into funding something that it is not my legal responsibility to pay.
[14] I have a direct interest in my application for my appointment as an additional guardian (which includes the question of whether I can be appointed as an agent or proxy). This appointment is desirable due to the difficulties caused by Ms Mahoney’s post-traumatic stress disorder (“PTSD”) symptoms being triggered by interactions with Mr Dieter. Mr Dieter refuses to communicate with me and insists that all communications with him go through his solicitor. I am not able to resolve this issue without the intervention of the Court.
[15]Ms Mahoney and I come as a ‘package deal to the extent that either one of us could have written this affidavit. There is a large (but not complete) overlap in our interests. Ms Mahoney is not represented by counsel or eligible for legal aid, primarily because I am the sole income earner in the household and my earnings exclude her from eligibility.
[16]Ms Mahoney can suffer from memory blanks or fail to express herself adequately when in stressful situations, due to her PTSD and cognitive processing difficulties (which [X], unfortunately, seems to have inherited). This is a very unusual family situation, spanning a number of years concerning matters of which I have direct (and detailed) knowledge. I have been present at all meetings with N Health Service, and due to my background knowledge of psychology, am able to grasp the salient points of [X’s] recent diagnosis which may be lost on laypersons. My input will therefore assist the Court to quickly understand the relevant issues.
[17]Most importantly, there needs to be someone who has legal knowledge (albeit not of Australian law) and who is able to articulate the concerns of the wider maternal family at a point in the proceedings where Counsel for Child or an amicus curiae may not yet have been be appointed. It would be unjust to have Ms Mahoney, a layperson with known disabilities, as the only representative of the maternal family at an initial hearing where Mr Dieter is answering serious allegations (such as child neglect and intentionally withholding evidence from the court).
The stepfather’s description of the interests of himself and the mother in the sentence [15] “Ms Mahoney and I come as a ‘package deal to the extent that either one of us could have written this affidavit. There is a large (but not complete) overlap in our interests.” is interesting. The extent to which their interests do not overlap is not articulated.
On 16 June 2020 the contempt application, which I dismissed today, was filed under cover of an application in a case. To summarise the affidavit evidence, outlines of argument and submissions, the stepfather elected to file the contempt application under the coversheet of an Application in a Case because he was informed by a Registrar of the Court that the contempt application drawn by him was incompetent and would not be accepted for filing. Again the stepfather and the mother name themselves as joint applicants.
In his affidavit sworn/affirmed 1 June 2020 and filed on 14 June 2010, seemingly in support of the contempt application, the stepfather deposes:
[1] […] Prior to May 2020 I was peripherally involved in the litigation as a witness and assisting as a McKenzie friend. I have [legal qualifications] and I have a current practicing certificate as a barrister and solicitor of the High Court of New Zealand.
[…]
[3] As the sole income earner in our household, I have borne most of the financial burden of my wife’s cases, including (relevantly) the payment of the cost of court filing fees, court transcripts and the costs of supervisors.
[…]
[40] Unlike Mr Dieter, I had not provided any affidavit evidence before the Court, nor had I signed either of Ms Mahoney’s initiating applications (Exhibits A and I). I had to keep this degree of separation from the proceedings to be eligible to be Ms Mahoney’s McKenzie friend. Ms Mahoney lacked the technical expertise to understand the meaning and relevance of the medical evidence from the G.Ps on her own. […]
[41]. In hindsight, it may have been a mistake to allow Ms Mahoney to act as Applicant in the Appeal (and the previous three proceedings), while remaining as her McKenzie friend. This had the consequence of leaving me sidelined and unable to speak in Court. While I had the greatest of confidence (perhaps, in hindsight, overconfidence) in my ability to draft comprehensive legal submissions for Ms Mahoney, and while she had the ability and intelligence to present those submissions, she did not have legal training. This meant that she could not effectively discern what was relevant and what was not.
[42]. Furthermore, Ms Mahoney struggles to think about legal concepts in the abstract, which hinders her advocacy (this meant, for example, that she did not think to depart from her written submissions to mention [N Health Service]). She suffers from cognitive processing difficulties and post traumatic stress disorder (which can be triggered by Mr Dieter) which hampered her ability to respond quickly to the unexpected (and in litigation the unexpected seems to occur nine times out of ten). I have remedied my previous mistake by joining myself as an applicant to both these proceedings and the parallel parenting order proceedings I have filed.
[…]
[50]On 5 May 2020 I filed parenting proceedings with the Family Court. Annexed and marked ‘AC’ is a copy of the initiating application. Annexed and marked ‘AD’ is a copy of my affidavit of 2 May 2020 (with exhibits removed).
[51]. I feel that my applications have been de-prioritized in decisions by Court administrative staff as they are perceived as being merely the latest in a string of ‘failed’ applications. This is a consequence of Mr Dieter withholding relevant information from previous Courts.
[…]
[54] I have suffered direct financial losses. Many of these are unrecoverable, such as the costs of airfares and accommodation in Melbourne to attend the various court hearings. However, I consider that the costs of court filing fees for the two Initiating Applications (a standard charge of $350 each, totaling $700), the filing fees for two appeals to the Full Court (a standard charge of $1380 each, totaling $2,760), and the costs of the Court Transcripts (annexed and marked ‘AB’ and totaling $2461.10) should be recoverable. I paid these sums, but, for the purposes of recovery, it matters little whether the compensation is paid into my account, my wife’s account, or our joint account.
[55] I also seek compensation for the costs of supervision. Annexed and marked ‘AG’ is a copy of the latest invoice from [P Contact Service], the supervisors. Note that we are charged for not only the 6 hours of supervision, but also travel time (0.5 hours) and mileage. Had supervision been lifted back in June 2018, the costs of 48 hours of supervision could have been saved, resulting in savings of NZD$2,880 plus GST and mileage.
Whilst the stepfather describes [1] his involvement in the mother’s litigation as “peripheral”, that assertion must be read in light of his later statement [40] that he did not give evidence nor “signed either of Ms Mahoney’s initiating applications” because “I had to keep this degree of separation from the proceedings to be eligible to be Ms Mahoney’s McKenzie friend.” My perusal of the copy of the Initiating Applications referred to by the stepfather, and annexed to his affidavit, disclose that both applications could only be signed by an applicant (Part K) or the applicant’s lawyer (Part J). It is not clear in which capacity the stepfather regards himself as having refrained from signing the mother’s two applications
The stepfather’s statement [41] that: “In hindsight, it may have been a mistake to allow Ms Mahoney to act as Applicant in the Appeal (and the previous three proceedings) …” betrays the fact that the stepfather was a principal actor in all the proceedings including allowing the mother to be named as sole applicant in proceedings initiated in her name. So does his later statement [42] that: “I have remedied my previous mistake by joining myself as an applicant to both these proceedings and the parallel parenting order proceedings I have filed.”
The applicant stepfather sought that the father be required to pay him financial compensation for proceedings in which the mother was the only applicant. The stepfather’s comment that their bank accounts are interchangeable [54] is an exemplar of the stepfather’s interest in the proceedings being interchangeable with the mother’s interest.
The particulars in the contempt applications were iterations of the following paragraphs allegedly occurring on four discrete periods commencing on 15 January 2018 and concluding on 19 February 2020:
a)The respondent (Mr Dieter) withheld and concealed from the Court information that was in his possession or control which was relevant to a point being considered by the Court. He was aware that he had a duty to the Court and to each other party to give full and frank disclosure in a timely manner and all information relevant to issues in this case.
b)The evidence that Mr Dieter gave was incomplete, misleading, or likely to mislead or deceive. Mr Dieter knew that he was withholding evidence or giving incomplete and misleading evidence in respect of information which the Applicant required to make out her causes of action. Mr Dieter remained silent in respect of this information in order to gain an unfair advantage in the case, which was struck out.
At the hearing, the stepfather conceded that there was insufficient detail to his contempt application. The father describes in detail the occasions which the stepfather was informed by a Registrar of the Court that the application was incompetent, but the stepfather pressed on regardless.
At the hearing of the contempt application, the stepfather conceded that he did not think that he would succeed with the application. He said that he had filed the application because he felt he was a person who is under a duty to bring to the Court evidence of misfeasance or misconduct concerning a child, in particular, his stepdaughter X. Variously, the stepfather submitted:
a)That his failure to set out with precision the contempt in each case is a moot point;
b)That the Registrar rejected the application on the basis that “it was vague” [10] and “did not comply with sufficient particularity”[11] and that he takes “no issue with that ruling”[12] of the Registrar that he did not comply with the Family Court Rules 2004;
c)That as an officer of “the Court” he has “a duty to bring any evidence [he] finds of maleficence to the attention of the court”[13] due to “the oath [he] swore upon as admission as a barrister and solicitor” [14];
d)That despite not being an Officer of the High Court of Australia, and being an Officer of the High Court of New Zealand, “[he] still feel[s] that [he] ha[s] a duty, if [he] detect[s] that there is evidence of misconduct, the requirement to bring that to the attention of the court, whether or not that is in the form of a formal application” [15];
e)That he told the Registrar, that despite the Registrar’s rejection of the form of the application, the matter “is so important” that he needed to bring it to the attention of the court “somehow”[16]. Accordingly he put a cover sheet for an Application in a Case on the front of his contempt application and filed it as an Application in a Case;
f)That he concedes that the application is flawed because it does not sufficiently particularise the alleged acts[17];
g)He did not take issue with the application being dismissed. [18]
[10] Transcript in Confidence, 20 July 2020, p. 3, 11-12.
[11] Transcript in Confidence, 20 July 2020, p. 3, 46-7.
[12] Transcript in Confidence, 20 July 2020, p. 3-4, 47-1.
[13] Transcript in Confidence, 20 July 2020, p. 3, 16-23.
[14] Transcript in Confidence, 20 July 2020, p. 3, 31.
[15] Transcript in Confidence, 20 July 2020, p. 3, 41-47.
[16] Transcript in Confidence, 20 July 2020, p. 4, 1-3.
[17] Transcript in Confidence, 20 July 2020, p. 5, 23-27.
[18] Transcript in Confidence, 20 July 2020, p. 5, 29-32.
The contempt application was dismissed.
Today, on the issue of costs of the unsuccessful contempt application, I ordered that the applicant stepfather pay the father’s costs of and incidental to defending the contempt application, such costs being fixed in the sum of $5750. No stay of payment was sought or made; therefore, those costs are payable immediately. The applicant stepfather stated that he has no money to pay the father’s costs ordered today.
I am satisfied that the father’s costs of defending the contempt application far exceeded the amount of the costs order. When taking submissions in relation to quantum of costs, I directed that the lawyers for the father prepare a memorandum of costs drawn in accordance with Schedule 3 to the Family Law Rules 2004. They did so over the lunch adjournment. Those costs came to in excess of $8,000 which I take to be a more reasonable accurate estimate of the financial detriment the father has suffered by reason of the misconceived and failed contempt application.
Vexatious proceedings
After the contempt application and costs issues were dealt with, there then arose, at my volition, the issue of whether or not the contempt application is a vexatious proceeding within the terms of Part XIB Division 2, Vexatious Proceedings Orders of the Family Law Act 1975 (the Act).
Vexatious proceedings is defined in section 102Q(1) as including:
a)proceedings that are an abuse of the process of a court of 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.
A “vexatious proceedings order” under s.102QB of the Act is described in s.102QB(2) as all or any of the following orders:
a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
c)any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
Section 102QB(1) of the Act provides that “vexatious proceedings orders” apply:
…if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
The father supports the contempt proceedings being characterised as vexatious proceedings.
The stepfather submitted that he has not instituted or conducted any proceedings in Australian courts or tribunals which have been found to be vexatious proceedings or otherwise. In relation to subparagraph (b) above, he contends that the mother is not “…another person who is subject to a vexatious proceedings order or who is covered by paragraph (a) …” and, therefore, a vexatious proceedings order cannot be made.
Discussion
At the outset, I observe that the stepfather, and it would appear the mother, have a particular view of the stepfather’s position, legal skills and acumen in general. This is apparent from the stepfather’s unfavourable comparison between his skills and those of the mother, which appears in some paragraphs of his evidence extracted above. The stepfather describes himself as follows:
[3]I am a solicitor, and I work … in a position of high trust and confidence. I have never been charged with any criminal offence. In the course of my career I have had experience with criminal, civil, employment and family litigation, as well as general commercial law and trusts and estates. I am very familiar with mediation and alternate dispute resolution.
The stepfather’s dealings with the Registrar and his insistence to proceed with the contempt application demonstrates that he is not easily deterred.
The statements which the stepfather made to me about his duty to put before this Court instances of non-compliance with orders, impressed me as bordering on grandiose. They have no basis in reality. This is a Court of private law. For the stepfather to contend that he was purely motivated to uphold the law, rather than to have the father punished, does not sit comfortably with his affidavit evidence asking for the father to be imprisoned:
[56] I seek that, in addition to the financial compensation sought, that a penalty of imprisonment be imposed. I consider such a penalty to be both proportionate and appropriate, bearing in mind the gravity and scale of the offending, and its impact upon a vulnerable child.
Indeed, when looked at in the context of all of the evidence, the stepfather’s claim, that the contempt application was based on his sense of general propriety and his duty to the Court, is disingenuous.
I had a more than adequate opportunity to observe the stepfather and the mother at close quarters over the Court’s video conference platform. I obtained a good measure of the stepfather when I interacted with him over the Court’s video conference platform which permits direct and undistracted communication. I have read the very detailed affidavit evidence prepared by the stepfather. The stepfather’s affidavit sworn on 1 June 2020 was made up of 32 pages of affidavit and a further 356 pages of annexures.
I am satisfied that the stepfather has not only enabled the mother to make her numerous applications but that he has been the motivational force behind proceedings being issued in Australia whether in the name of the mother or with them both as applicants.
The mother was heard on the issue of the use of the contempt application. She sat next to the stepfather. She submitted that the contempt application had been brought really for the Marshal to pursue her daughter’s best interests. I am at a loss as to how she thought that would happen. The mother analogised herself and the stepfather as being no more than joint complainants in a criminal prosecution. She submitted that:[19]
…I believe there has actually been a miscommunication. Because we believe contempt had occurred because of the withholding of relevant documents from the court. We were bringing the contempt to your attention so that the court could decide if the marshal should pursue a contempt proceeding against Mr Dieter or not. We never intended to actually run a contempt of court case ourselves and – any more than a person who reports a crime to the police is expected to run the trial. If this is not the correct way to bring to the court’s attention that documents have been withheld from it, then we beg the mercy of the court. Our main concern is X and her emotional wellbeing, and we believe that, without the medical records and other documents withheld from the court, the court has been blind previously to her needs.
[19] Transcript in Confidence, 20 July 2020, p. 14-15, 45-8.
It is a pity that the mother could not bring some sense of moderation to bear on the stepfather’s actions. It is a pity that by the time the mother addressed the Court in the above terms, the father was already before the Court, and he had retained legal representation including experienced counsel who had provided written submissions and objections to evidence in advance.
I am satisfied that the stepfather has not only enabled the mother to make her numerous applications but that he has been the motivational force behind proceedings being issued in Australia, whether in the name of the mother or with them both as applicants.
I conclude that the failure of the joint contempt application will not deter the applicant stepfather and/or the mother from bringing further applications against the father. Nor will it give them pause for thought about whether their applications are advancing their joint cause to reverse the current parenting arrangements for X or are, perhaps, confirming an impression of them as lacking in insight, obsessive and unable to come to grips with why X was removed from their care by child welfare authorities in New Zealand in the first place.
The fact that the stepfather states that the mother has no money and he has spent all of his money impresses me as cavalier to the point that he and the mother are also unlikely to be dissuaded from pursuing further court cases by costs orders being made against them. Indeed, the relentless filing of proceedings irrespective of the prospect of success, and forcing the father to incur legal expenses, may be the only weapon that Mr and Ms Mahoney have against the father.
At this point in the proceedings, I am not considering making a vexatious proceeding order as contemplated by s 102QB(2)(a) to (c). I am merely considering whether to characterise the failed contempt proceeding as a vexatious proceeding. A consequence of me doing so would be that, in subsequent proceedings, a party may apply for, or the Court of its own volition may impose, one of the vexatious proceeding orders described in s 102QB(2)(a) to (c) of the Act on one of the bases provided for in s 102QB(1). That is, if the Court then seized of the matter is satisfied that:
a)A person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
At this point in the proceeding, all I need be satisfied of is that the failed contempt application was a vexatious proceeding within the meaning of s 102Q (which is relevantly extracted above at paragraph 30 of these reasons) noting that s 102QB(1) is an inclusive definition.
The elements of a contempt application are clear. Part C of the form used by the applicants specifies that the details of the act or omission that it is alleged amounts to a contempt of court must be set out. If the applicant alleges more than one contempt of court, the applicant must set out details for each contempt in a separate paragraph or on an extra page or pages in accordance with Item 4. Item 4 is an example table which provides a box into which there must be inserted the date, time and place of each contempt alleged as well as an area within the box for the “Statement of the alleged contempt” and an example. The charge relied upon by the applicants for all four counts (which is relevantly extracted above at paragraph 23 of these reasons), fails in all necessary respects. On the facts of this case, I am comfortably satisfied that the stepfather and the mother instituted and pursued the contempt application in this Court without reasonable grounds to do so within the meaning of s 102QB(1)(c).
I am also satisfied that the contempt proceedings was an abuse of process within the meaning of s 102Q(1)(a) to apply. The stepfather and the mother sought to invoke the contempt power irregularly and improperly. It does not matter that the application was incompetent. It still bore the warnings that a warrant could issue if the father failed to appear. The father properly, and prudently, retained lawyers to defend the application when the stepfather and mother persisted.
The stepfather admitted that he knew that the application could not succeed and proceeded with it supported by affidavit evidence calling for the father to pay monetary compensation and serve a term of imprisonment, I am satisfied that the application was instituted and conducted in this Court by the stepfather and the mother in a way so as to harass or annoy the father within the meaning of s 102QB(1)(b) and (d). Furthermore, that as the stepfather disavows that he and the mother have any capacity to pay any costs order in favour of the father, the application was conducted for the improper purpose of causing the father to incur expensive legal fees to defend the application which, as far as the stepfather and mother are concerned, the father has no prospect of recovering against them.
Conclusion
The actions of the stepfather and the mother in instituting and conducting an incompetent application which:
a)was an abuse of process;
b)lacked proper grounds;
c)wasted the court’s time;
d)takes up a place in a busy judicial duty list necessarily preventing another matter being listed in its place, and
e)caused the father to incur legal costs –
is in all respects a vexatious proceeding.
For the above reasons, I am satisfied that the Application in a Case filed on 14 June 2020, containing a contempt application, was a vexatious proceeding within the meaning of s 102Q(1) of the Act.
I am satisfied that the stepfather and the mother are each individually responsible for the vexatious proceeding.
If, or when, the Court is subsequently required to consider whether to make a vexatious proceedings order against the stepfather and/or the mother, it is appropriate that the Court to have regard to the failed contempt application as a vexatious proceeding.
Disqualification
At the conclusion of the hearing, I asked the stepfather whether it was sought that I recuse myself from further hearing his matter. He said that he did not in the following interchange:[20]
HER HONOUR: … Mr Mahoney, do you want to make an application for me to disqualify myself?
MR MAHONEY: No, your Honour.
HER HONOUR: I’m not disqualified. Thank you. That concludes the matter for today.
[20] Transcript in Confidence, 20 July 2020, p. 29-30, 45-4.
On 22 July 2020 at 5.57 am, my Chambers received a communication from the stepfather, copied to the wife’s solicitors, which omitting formal and irrelevant parts reads as follows:
Good morning,
I have reflected further upon Judge Bennett's comments regarding recusal and now agree with her that it is appropriate that she recuse herself from further involvement in this matter.
Regards,
Mr Mahoney
The stepfather’s communication was inappropriate. Recusal of a judicial officer is a serious matter. I make no decision in that regard but, for the avoidance of doubt, do not consider myself disqualified.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 August 2020.
Associate:
Date: 14 August 2020
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