MAHONEY & DIETER
[2019] FamCA 633
•16 September 2019
FAMILY COURT OF AUSTRALIA
mAHONEY & dIETER
[2019 ] FamCA 633
FAMILY LAW – CHILDREN – Application for summary dismissal made by father – where parenting orders made in New Zealand and registered in Australia – where child lives with the father – Rice & Asplund principle – where father seeks order for a vexatious proceedings order against mother – orders made.
Family Law Act 1975 (Cth) ss. 60CA, 69ZX, 102Q
Family Law Regulations 1984 (Cth) reg.23
Gebrien v Todd [2015] NZFC 4949
Gebrien v Todd [2017] NZFC 2493
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Mahoney & Dieter [2019] FamCAFC 39
Marsden & Winch (2009) 42 Fam LR 1
Rice and Asplund (1979) FLC 90‑725
Stativa & Stativa (2015) FamCAFC 170
APPLICANT:
Ms Mahoney
RESPONDENT:
Mr Dieter
FILE NUMBER:
MLC
11835
of
2017
DATE DELIVERED:
16 September 2019
PLACE DELIVERED:
Melbourne
PLACE HEARD:
Melbourne
JUDGMENT OF:
Hartnett J
HEARING DATE:
14 August 2019
REPRESENTATION
THE APPLICANT:
In Person
COUNSEL FOR THE RESPONDENT:
Ms Harris
SOLICiTOR FOR THE RESPONDENT:
Melbourne Family Lawyers
Orders
(1) The application filed 9 May 2019 is dismissed.
(2) The application otherwise contained in response filed 6 June 2019 is dismissed.
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 11835 of 2017
Ms Mahoney
Applicant
And
Mr Dieter
Respondent
REASONS FOR JUDGMENT
Preliminary
1. On 9 May 2019 the Applicant mother (‘the mother’) filed an initiating application. She sought final and interim parenting orders in respect of the parties’ biological child, X, who was born in 2011 (‘the child’) and who is now aged eight years and four months.
2. The mother swore her affidavit in these proceedings in the month following the delivery of reasons for judgment by the Full Court of the Family Court of Australia in respect of an appeal lodged by the mother against orders made by Austin J, which dismissed her earlier initiating application for parenting orders. The Full Court made orders on 7 March 2019, relevantly, that:-
…
(2) The appeal be dismissed.
(3) There be no order as to costs.
3. The mother’s application in these proceedings is in terms essentially the same as those set out in the mother’s earlier application filed 14 November 2017, which was dismissed by Austin J on 27 June 2018. The mother relies upon in these proceedings an affidavit of evidence sworn by her on 11 April 2019 (and filed on 12 May 2019) together with a financial statement sworn by her on 4 July 2019; and an affidavit of Mr D, clinical and registered psychologist, sworn 29 May 2019, to which is annexed a copy of Mr D’s report dated 6 May 2019. Additionally she relies upon a tendered, bundle of annexure documents, together with a written closing submission.
4. By response filed 6 June 2019, the Respondent father (‘the father’) sought a dismissal of the application of the mother and, for a vexatious proceedings order to be made against the mother. On the hearing the father did not proceed with his application for costs or security for costs but rather sought and obtained (by order of Registrar Sudholz made 29 July 2019) a summary dismissal application listing in respect of the parenting orders sought.
5. On the hearing of this matter on 14 August 2019 the parties confirmed that each had prepared for the hearing of the Respondent’s summary dismissal application together with his application for the declaration of the Applicant as a vexatious litigant. In the running of the matter, the Respondent indicated that he sought the vexatious litigant order to operate for a period of three years.
6. Each of the parties had an opportunity to cross-examine the other in a limited way, the father really for the purpose of establishing any relevant admissions not already made and in respect of the vexatious litigant order application and the mother in particular in respect of the vexatious proceedings order. Otherwise the Court sought to be assisted in its determination of whether there had been a change of sufficient magnitude and circumstances to warrant a revisiting of the presently existing orders, noting that the child’s best interests remained the paramount consideration. Some part of the mother’s affidavit evidence and some part of the annexures tendered were irrelevant but the mother sought that the Court accept into evidence the totality of her affidavit evidence together with all of the annexures on which the mother sought to rely, and thereafter in its discretion give that evidence such weight as the Court determined appropriate. The other party did not object. The Court adopted that consensual course given the mother desired that all of her material be before the Court, and that as a litigant in person, the process of engaging in an objections to evidence procedure appeared somewhat overwhelming and daunting for her.
Background
7. The mother’s husband, Mr Mahoney (‘the husband’) appeared as the mother’s McKenzie Friend in the running of these proceedings. The mother and her husband were married in 1996 and had three children. Their eldest child, Ms E, was born in 1998; their second child, Ms J, was born in 2000; and their third child, Y, was born in 2002. The child Ms J died in 2009 after complications arising from influenza. The child Y is autistic. The child Ms E is an adult aged 21 years who lives independently of her parents.
8. The father is an Australian citizen. The mother is a citizen of New Zealand. The child has dual citizenship.
9. There are factual matters which are uncontested and other matters which the Court adopts as set out in the paragraphs which follow. These are as referred to in the judgment of 15 July 2015 of Judge Moss in the Family Court Division of the District Court of New Zealand (‘the New Zealand July judgment’). Section 69ZX(3) of the Family Law Act1975 (Cth) (‘the Act’) expressly allows the Court to take into account the judgments and findings of other courts. Indeed the mother herself placed into evidence the New Zealand July judgment.
10. In 2010, the mother became pregnant with the child the subject of these proceedings. The husband is not the biological father of the child. He became aware of that fact after the child’s birth. Nevertheless he was committed to the child. In July 2015 he was assessed as the child’s preferred attachment figure.
11. The mother’s relationship with the father commenced in June or July of 2010. The father was approximately 20 years of age, and the mother was approximately 34 years of age. Throughout most of the relationship the mother and father were both residing in New Zealand. The father’s evidence was that he was unaware the mother was married until after the birth of the child. His evidence was accepted by the Family Court Division of the District Court of New Zealand (‘the New Zealand court’) in the 2015 New Zealand proceedings. On the mother’s evidence, which was not accepted, the father was not aware of that fact until after conception.
12. In November 2011, when the child was approximately six months of age, the father left New Zealand and returned to his parents’ home in Melbourne. He next returned to New Zealand in 2015. He established a residence at that time in New Zealand.
13. During the relationship the mother, in particular:-
a) attended with the child at the father’s apartment in New Zealand on most weekends in September, October and November of 2011. Additionally, the mother received the father at her home most weekdays for some time during the working day after the birth of the child in 2011. At those times, the father spent time with the mother and the child;
b) holidayed with the child in Australia with the father’s family in December 2011 to January 2012 for three weeks.
14. The father terminated his contact with the mother in January 2012. The mother however maintained written contact with the paternal grandmother in Australia, sending regular news and pictures of the child by email. The father paid child support regularly. In early 2014 the father commenced proceedings in the New Zealand court (‘the New Zealand proceedings’). The father sought orders to spend time with the child. That application was opposed by the mother who sought a parenting order granting her day-to-day care of the child. From around that time the father’s child support assessed amount decreased and he paid child support at the minimum statutory level.
15. During the course of the New Zealand proceedings, and in May 2014, the mother sought a Protection Order against the father, alleging that he had raped her and subjected her to other violence.
16. In paragraph 12 of the New Zealand July judgment, Judge Moss observed that the mother’s complaints of physical and sexual violence perpetrated against her by the father had not resulted in prosecution. In paragraph 42 of the New Zealand July judgment, the New Zealand court noted that although early in the proceedings (being March 2014) the mother had described the context of her relationship with the father as a brief relationship, and nothing more, by May 2014, the mother was alleging that the child was conceived by rape. In paragraph 47 of the New Zealand July judgment, the New Zealand court observed that the husband had accepted, throughout his written evidence, his wife’s account that she had been raped, however, by the time he gave evidence before the court orally “[he] accepted that the mother had had a consensual sexual relationship, as a result of which [the child] was born”.
17. The New Zealand court did not consider the mother’s account of the conception “to be credible”.
18. The New Zealand court made findings, on the balance of probabilities, that any non-consensual sexual interaction had not occurred. The New Zealand court accepted, in paragraph 110 of the New Zealand July judgment, the father’s evidence that “he has not on any occasion imposed violently on the mother”.
19. In the New Zealand proceedings the mother also made, what was found to be an unsubstantiated complaint, that the father had, either on Boxing Day 2011, or on about 2 January 2012, tried to strangle the mother whilst she was holding the child. In rejecting this allegation on the basis of the evidence before it, including the paternal grandmother’s account in relation to the surrounding events of the time, the New Zealand court found that:-
Contextual events of the mother’s lack of emotional regulation in the household tend to prove that this was another event in a consistent pattern, rather than an event of violence by the biological father against her. The level of her distress, her inability to feed [the child] and comfort her, and her demanding that the biological father return to the household are all aspects of the event which are profoundly concerning, and put [the child’s] welfare at risk.
20. The New Zealand court concluded as to the mother’s various allegations:-
There is no evidence tending to prove that the biological father poses a risk to the safety of [the child]. There is no evidence tending to prove that the mother needs a Protection Order against the biological father. The application for a Protection Order is dismissed.
21. During the course of the New Zealand proceedings Ms F was commissioned by the New Zealand court to complete a psychological assessment of the mother, which she provided to the court in February 2015. Ms F’s report “painted a picture of worrying inadequate psychological functioning by the mother in terms of meeting [the child’s] needs”.
22. Ms F’s expert opinion as to the mother’s psychological functioning was set out in paragraph 160 of the New Zealand July judgment as follows:-
[Ms Mahoney] has a clear psychological problem including emotional dysregulation and significant anxiety being displayed, which she attributed to Post-Traumatic Stress Disorder (PTSD) for which her childhood (father was reportedly violent) made her vulnerable to [Mr Dieter’s] incursion. However, an alternative explanation is that she had a consensual relationship with [Mr Dieter], which she cannot admit. Thus her cognitions have become distorted and she is defending her right to continue her relationship with [the child] and her husband. To maintain this line has been highly stressful as it would have required her to create more narratives on top of previous ones. The Court will need to make a finding of fact in terms of these hypotheses.
According to the [Mahoney’s] reports and my observations, [Ms Mahoney] becomes emotionally dysregulated and is unable to self- soothe. She cannot continue to interact. She spoke of disrupted sleep and constant anxiety which is currently focused on the current assessment.
23. Ms F concluded “there was a risk, based on the current state of relationships and dynamics that the child would become pathologically alienated from her biological father” which she described as “psychological abuse” which was “at the upper end of extremity”.
24. The New Zealand court considered Ms F’s evidence noting the following:-
a) [Ms F] assessed the relationship which [the child] has with her mother and [the husband] as inadequate to meet her psychological needs. [the child’s] primary attachment is to [the husband], and a secondary and important attachment exists with [the mother]. However, the attachments are in total, from [Ms F’s] point of view, insecure. The insecurity arises from a number of factors, including the difficulty which the mother and [the husband] have of parenting her authoritatively, the reluctance they have to enable her to individuate successfully, the effect of placing her on a pedestal, particularly to the expense of the older child [Y,] the lack of adequate social and behavioural boundaries around her, including the lack of authority expressed by [the mother’s husband], their inability to enable her to sleep alone, and their admiration of her capacity to look after her very upset mother;
b) [Ms F’s] conclusions that the child’s psychological needs were not being met in the care of the mother and her husband; that the care of the mother’s son, [Y], appeared neglectful, with little parental insight and empathy into his needs; and that the departure of the eldest child, [Ms E], from the home left “no other adult to provide oversight for [the child] in the home. In this family’s history there is a need for oversight of children, which is increased given [Y’s] presentation.”
25. In paragraph 170 of the New Zealand July judgment the New Zealand court found serious risk of serious harm to the child. The New Zealand court stated, relevantly:-
I accept [Ms F’s] opinion evidence that she considered that [the child] is at risk of adultification and parentification. She is already established in an anxious mode of behaviour, which she has learned from her mother. She is not accomplishing the age appropriate tasks of individuation in an appropriate way. I accept [Ms F’s] reasoning that [the child] is at risk of enmeshment with her mother, and that there is a high risk, given that dynamic and the views of the mother and the [husband] that pathological alienation will follow. This act of alienation leads to significant issues of maladjustment in adolescence. It would likely deprive [the child] of a realistic chance of a well expressed and nurturing relationship with her biological father and his family. Given that [Ms F] can see the risk now, and can persuasively reason for the Court both likely consequences if no action is taken, and the steps to ameliorate the risks, the Court is bound to act on [the child’s] behalf to address the risks.
26. The child was removed from the care of the mother and her husband and placed under the guardianship of the New Zealand court. Thereafter the child was placed in foster care. Shortly after the child’s removal from the care of the mother and her husband, without notice to the mother and her husband, their child Y was also removed from their care by Child, Youth and Family (as it then was) formal intervention.
27. The New Zealand court determined in July 2015, that it was premature to determine the father’s application for a parenting order for day-to-day care of the child (which he had by then made) and adjourned the father’s application for further hearing.
28. In November 2015 the child was placed in the care of the paternal grandmother whilst still under a guardianship order with the father residing with his mother and thus also with the child. In December 2015 the child was placed in the care of her father whilst still under the guardianship of the New Zealand court. The mother was by then spending supervised time with the child.
29. Final parenting orders were made in respect of the child in the New Zealand proceedings on 7 April 2017. The orders granted day-to-day care of the child to the father, with the mother to have ongoing supervised contact. The orders of 7 April 2017 also provided for the father to take the child to Melbourne to reside, departing no earlier than 27 April 2017. The orders further provided, relevantly, that:-
…
3. [Mr Dieter] will bring [the child] to New Zealand for visits in each school holidays. In each school holiday there should be two contact visits, 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. The Ministry is to assist to establish that supervisor with sufficient information, before the July school holidays. [Ms Mahoney] is to fund the supervision. [Mr Dieter] will fund [the child’s] travel.
4. Once the Wardship Order expires in November 2017, the parents will need to make arrangements for the contact visits. The length of the visits will depend on the availability of the supervisor, but should not extend beyond three hours, initially. [Ms Mahoney] and [Mr Mahoney] should both attend.
5. There shall be Skype contact, it should not be longer than 30 minutes duration. It is to be recorded at both ends. It is to be supervised, by the grandmother, or if she is not available [Mr Dieter] being in the room with [the child] but off screen. Frequency of contact by Skype should be agreed by the parents. In the event that agreement cannot be reached, [Ms G] and the Ministry Social Worker are to advise the Court about welfare and practical issues. The matter will then be determined by Her Honour Judge Moss on the papers.
30. As set out in the reasons for judgment of Judge Moss of 7 April 2017 at [1], the transfer of the child into her father’s care:-
…was necessary for the welfare and safety of [the child] because of the mother’s intense fixed and wrong beliefs about the father’s behaviour and her relationship with him. These beliefs are not related to his parenting of [the child]. If [the child] learns about these beliefs, the damage to her will be adverse and lifelong.
31. There was no appeal from the orders made in the New Zealand proceedings.
Family Court of Australia Proceedings
32. Following the making of the orders in New Zealand by the New Zealand court on 7 April 2017 (sealed 11 April 2017), the Family Court of Australia at Melbourne certified that the orders made 7 April 2017 had been registered on 29 January 2018 in the Family Court of Australia at Melbourne in proceedings number MLC11835 of 2017 pursuant to reg.23 of the Family Law Regulations 1984 (Cth) and were now enforceable in an Australian Court. Such certificate of registration of overseas parenting order in Australia was dated 29 January 2018.
33. On 14 November 2017, and approximately seven months after the father and child relocated to Australia, the mother filed an application in the Family Court of Australia seeking orders for the child to live with her in New Zealand and interim orders for extended, unsupervised time with her including school holidays in New Zealand.
34. Almost immediately following the mother’s filing of her application in November 2017, and on 23 November 2017, the mother made a complaint with police in Melbourne being a repetition of her earlier allegation of rape as against the father. On 29 December 2017, the mother made a statement to police concerning that alleged rape.
35. On 15 January 2018 the father filed a response to the mother’s application seeking dismissal of her application.
36. On 27 April 2018, the mother filed an affidavit sworn by Dr B, consultant forensic psychiatrist, of New Zealand. Annexed to the affidavit of Dr B was a report by him dated 17 April 2018.
37. The November 2017 application of the mother was heard by Austin J in the Family Court of Australia in Melbourne on 26 and 27 June 2018. During that hearing Dr B was cross-examined by Counsel for the father. Tendered by the mother in these proceedings was a transcript of proceedings of the hearing on 27 June 2018 and, relevantly, of the cross-examination of Dr B.
38. During the giving of his evidence in the proceedings before Austin J, Dr B:-
a) confirmed that on the occasion of the interview he had with the mother, also present, but not for the entirety of the interview, was the husband, whom Dr B agreed was present as a significant supporter of the mother;
b) indicated his understanding that the husband believed the narrative provided by the mother in relation to the alleged sexual assaults and violence that she alleged were perpetrated upon her by the father, including the allegation that the child was conceived as a consequence of what the mother described as a rape;
c) noted that it was a possibility that the mother had a fixed belief that she was the victim of violence and sexual assault at the hands of the father, but that another possible explanation for the giving by her of the same narrative to a number of practitioners was that “[s]omething else happened, and that from the beginning she has - or from at some point down track - she has decided to adopt this narrative instead”;
d) described the creation of such a narrative becoming, in effect “a self-deception” and that often “…that creates the most convincing and sustained narrative when the narrative [is] false”;
e) described the mother as having described, and appearing to have experienced, negative sequelae from the event, whether accepted by her as a false narrative or whether reality and that such experience has led to people diagnosing that as Post Traumatic Stress Disorder in the mother. He found there to be “certainly a level of depth and conviction to the belief that she holds”;
f) stated that in the event of the mother’s acceptance of a narrative more acceptable to her, and being a false narrative, therapeutic intervention would not assist in altering her view; and
g) noted the husband’s evidence given in the New Zealand July proceedings that he did not believe in June 2015 that the mother had been raped, in fact, he believed she had not, to be inconsistent with what he elicited from the husband in interview and his understanding of the husband’s viewpoint.
39. Dr B concluded the mother was “unlikely to have a delusional disorder” and as referred to by the Full Court in its judgment of 7 March 2019 at [21], based on his assessment Dr B saw “no grounds to have concern from a psychiatric perspective, for (the mother’s) capacity to parent the child.”
40. The evidence of Dr B was the primary plank of the mother’s claim to changed circumstances in the earlier proceedings before Austin J, however, as His Honour concluded, the New Zealand final orders of 7 April 2017 were not based on whether or not the mother had a mental illness or was delusional.
41. On 27 June 2018, His Honour Austin J dismissed the mother’s initiating application and any other outstanding applications. His Honour dismissed the mother’s application because she had failed to demonstrate any material change in circumstances. As said by the Full Court on appeal, “[in] other words, resolution of what is often described as the Rice and Asplund (1979) FLC 90‑725 (“Rice and Asplund”) question”.
Consideration
42. In the New Zealand proceedings the mother’s allegations against the father were found, in 2015, to be fabricated. The mother nevertheless continued to vehemently believe them, and her reporting of allegations over time escalated in seriousness so that by the time of the making of the final parenting orders in 2017, Judge Moss stated, in paragraphs 4 and 5 of her reasons for judgment of 7 April 2017:-
The mother believes that the father was sexually and physically violent to her, leading both to a lasting head injury and conception 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 focussed in their contact with [the child] 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 violence and deviant behaviour to others.
The Court does not have the power to require the mother to not mention these matters. A solution needs to be found to protect [the child] from the effect of the repetition and escalation of allegations. In part, the effect is related to [the child’s] own security of ego and safe personal development. In part, the effects of the escalating allegations are to prevent the father beginning to develop a collaborative and informative relationship, recognising the mother’s status as a residual guardian of the child…
43. This proceeding involved whether or not there has been a material change in circumstances since the final orders were made in April 2017. The Court had before it as introduced into evidence by the mother the judgments of Judge Moss of 15 July 2015 and 7 April 2017 to assist it in determining the circumstances in 2017. As to the circumstances now, the mother placed before the Court a transcript of the proceedings before Austin J on 27 June 2018, in particular, to refer to the evidence then given before His Honour of the forensic psychiatrist Dr B and the evidence of Mr D to, together with her own evidence, establish to the Court’s satisfaction that there had been a material change in circumstances.
44. The Court is not engaged in a re-hearing of the New Zealand proceedings or a re-hearing of, indeed, any earlier proceedings. The Court accepts the correctness of the New Zealand orders and by reference to them has considered whether there are material changed circumstances. The Court also accepts the correctness of the decision of Austin J. The Court notes the mother’s evidence that the current orders have been complied with by the father. One might ask therefore what proper basis could this application have in light of the recent decisions of Austin J and the Full Court. Indeed, why are the parties before the Court? The answer to that, the mother says, lies in the decision of the Full Court.
45. In its judgment of 7 March 2019, the Full Court said, relevantly:-
A proper reading of the New Zealand judgment demonstrates that in relation to the mother’s mental health, the decision turned not on whether or not the mother had a mental illness, but that the fixed beliefs of the mother, whatever their genesis or label, posed a risk of harm to the child.
46. The manner in which the Full Court conducted the appeal and the decision of the Full Court provided motivation to the mother. She acknowledged making her decision to reinstitute further proceedings during the Full Court hearing of her appeal, and, in her words, “on instruction” from the Full Court which she described as having given her “helpful feedback”. The mother sought out an expert opinion to establish her improved parenting ability. This evidence, she understood, needed to be of a different type to that given by Dr B. In these proceedings the mother pointed to Mr D’s evidence, saying it established that she had “good parenting ability”.
47. Mr D is a clinical and registered psychologist. The mother and the husband met with him on 12 April 2019 at which time they provided to Mr D a copy of Dr B’s psychiatric report dated 17 April 2018. They also provided Mr D with a “brief verbal history of the circumstances of [the child’s] life and the Family Court’s involvement.” Mr D was engaged by the mother for the express purpose of providing opinion evidence in these proceedings.
48. Before considering Mr D’s evidence it is useful to note that the mother’s evidence in the course of these proceedings was that her beliefs remain unaltered. In her affidavit evidence, the mother continued her narrative of the unsubstantiated rape and assault allegations that have dominated all previous proceedings. Otherwise there is put before the Court some criticism of the father and paternal grandmother. The mother’s criticism of the father in her affidavit evidence included claiming that “[the child] is aware that Mr Dieter does not like us and resents us spending time with her”, and claiming that what the father is doing to the child “is… monstrous”. The mother claimed in paragraph 73 of her affidavit sworn 11 April 2019 that she and her husband had noticed a “growing distance between [the child] and [the paternal grandmother]”, and claimed that the child now knew what the concept of a lie was because of her spending time in her father’s care.
49. It was the mother’s further evidence that she and the husband have made it clear to the child that they would like her to live with them in New Zealand and that:-
we are doing absolutely everything we can to spend more time with her. [The child] sees her room on Skype and knows that she always has a place with us. We have told [the child] that the people who are special to her will always have a place in her life.
50. The husband is currently paying the private supervision costs of he and the mother’s time with the child. The Court accepts the mother has no income and some personal debts including child support arrears. The mother’s evidence was that the husband wished to cease making supervision payments, it not being an obligation of his personally, and it being an expenditure he could no longer afford and/or did not wish to pay. The husband was not on affidavit nor a witness in the proceedings. There was no evidence from him as to his intent to resile from paying supervision fees whilst on his current salary in excess of $100,000 gross each year. The Court can infer that is not his position. Even if that were not the case, and the mother’s evidence is accepted for the purposes of a summary dismissal application, such differing finding would not alter the outcome of these proceedings. Other supervision arrangements would need to be put in place dependent upon financial capacity; availability of such service; and agreement between the parties. There are no current proposals. The mother seeks unsupervised time spent with.
Evidence of Mr D
51. The evidence of Mr D, as contained in his report, was that he had an initial meeting with both the mother and the husband on 12 April 2019. This was the same date that the mother completed and dated her initiating application for final orders. Subsequently, Mr D met with the mother (alone) on 17 April and 1 May 2019. Mr D’s evidence went to a discussion had by him with the mother, and initially with the mother and the husband. He described those discussions in terms of advice given by him to the mother. In that regard I set out below the relevant contents of his report, being, in his description, an explanation of the “issues” discussed between he and the mother and the husband:-
(i) The importance of remaining psychologically “in the present” or “in the moment”, not thinking about the past (when hurt, guilt, resentment can be triggered and impact behaviour) or the future (when anxiety and hopelessness or despair can impact behaviour). This can be practiced away from contact;
(ii) Accepting that your ability to influence or impact [the child] is limited to your contact, and your influence cannot extend beyond that, or at least with not any certainty. Acceptance of circumstances of that are beyond your control is an important component of psychological health and emotional regulation;
(iii) Similarly, accepting that you cannot be a source of emotional comfort to [the child] outside of your contact, or necessarily during your Skype contact;
(iv) Managing your conversations with [the child] in such a way that you avoid discussions about “truths” (who is telling the truth, what is right), differences between [the child’s] experiences with both families – if need be, state quite clearly that you don’t want to talk about something, or if appropriate, ignore comments that [the child] makes. Examples we discussed were [the child] saying “Happy Mother’s Day, [Ms Mahoney]” (not commenting on the use of “[Ms Mahoney]” rather than mummy), and [the child] mentioning her name being changed in Australia (not responding but ignoring it);
(v) Avoiding too much discussion about [the child’s] life in Australia or your own life in New Zealand. That makes it less likely that you will veer into conversation that heightens negative emotional associations and detracts from a positive experience of the moment. That is a balancing act though – you need to naturally discuss your lives but don’t do so in a way that tries to “make up for” not being more involved with each other;
(vi) It is important that you accept the reality of the current care arrangement, primarily that [the child’s] father and paternal grandmother are responsible for her day-to-day care. It is in [the child’s] interest that you support that. You will be helped at that if you work hard at genuinely believing that she is being adequately cared for. It doesn’t need to be the same as your care, different is okay;
(vii) It appears as though [the child] still has a positive perspective on her relationships with you both. That suggests that her father and paternal grandmother are not actively undermining or sabotaging her relationships with you both. You need to do the same in return – actively support their role in [the child’s] life;
(viii) The giving of gifts is appropriate, but do so with sensitivity to the number and size and practicality of the gifts. Don’t try to “make up for the absence of contact” with more gifts;
(ix) Recognise that [the child] will have her own relationships with her father and paternal grandmother and other family members in Australia. Those relationships will be different to what you might imagine they will be. You need to be open to the likelihood that those relationships are positive;
(x) Begin and end contacts, either Skype or face to face, with simple and quick greetings and farewells, with brief but heartfelt affection – be “real” but don’t prolong it.
52. Mr D was unable to comment with any accuracy as to whether or not the mother was able to utilise the insights and recommendations provided by him above, nor whether the mother’s behaviour during contacts reflected them. He noted, however, that the mother certainly understood and agreed with the advice given by him and was prepared to discuss the emotional impact on her, of enacting the advice. She was aware that her instincts were often to act differently but she appreciated the value to the child of not doing so. Mr D observed the mother to become distressed but with an ability to quickly re-focus.
53. The evidence of Mr D did not provide evidence of a materially changed circumstance. It fell far short of that. Mr D’s evidence went to the need to discuss with the mother and with the husband the management of the mother’s behaviours and beliefs, and in particular, whilst with the child, so as to promote the child’s best interests.
54. The power to summarily dismiss an action must be rarely and sparingly used. The onus is on the father to establish the mother cannot succeed on the evidence adduced by the mother in support of her case together with any relevant admissions of the husband at the time of the hearing. He must establish that the mother lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
55. The mother submits in paragraph 14 of her closing submissions that, if the Court accepts the evidence of herself and Mr D at face value, then she will have passed the Rice & Asplund threshold by a significant margin.
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)”; 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”.
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.
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.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 16 September 2019.
Associate:
Date: 16 September 2019
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