FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Mahoney & Dieter [2021] FedCFamC1F 111
File number(s): MLC 4348 of 2020 Judgment of: MACMILLAN J Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – INTERIM HEARING – where the child’s step-father and the mother seek an order placing the child on the Airport Watch list – where the step-father and mother live in New Zealand – where the father and the child live in Australia – where final orders were made in the Family Court of New Zealand and registered in the Family Court of Australia – where the threshold issue of whether there has been sufficient change in the circumstances to warrant the matter being re-litigated has been listed for hearing – where there is no evidence establishing a risk of the child being removed from the Commonwealth of Australia and not returned or any attempt to frustrate the applicants application for parenting orders – where a Watch list order not made. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 65AA, 68B, 117, 117(2A), 102(Q)(1), 102QB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.17
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481
Flanagan & Handcock (2001) FLC 93-074
Kuebler & Kuebler (1978) FLC 90-434
Lees & Halstead and Anor [2018] FamCA 920
Line & Line (1997) FLC 92-729
Marsden & Winch (2013) FLC 93-560
Division: Division 1 First Instance Number of paragraphs: 49 Date of hearing: 22 September 2021 Place: Melbourne The Applicants: In Person Counsel for the Respondent: Ms Harris Solicitor for the Respondent: Melbourne Family Lawyers ORDERS
MLC 4348 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MAHONEY
First Applicant
MS MAHONEY
Second Applicant
AND: MR DIETER
Respondent
ORDER MADE BY:
MACMILLAN J
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Applicants Application in a Case filed 5 July 2021 is hereby dismissed.
2.The Application in a Case filed by the Applicants on 5 July 2021 was instituted and conducted as a vexatious proceeding within the meaning of s 102(Q)(1) of the Family Law Act 1975.
3.The Applicants pay the Respondent's costs of and incidental to the Application in a Case filed 5 July 2021 fixed in the sum of $5,418.22.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that…
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CaseChat Overview and Summary
The case of Mahoney & Dieter was heard in an Australian court, where the applicants, Mr. Mahoney and Ms. Mahoney, sought an order to prevent the removal of their child, X, from Australia or New Zealand for a period of eight years, other than for travel between these two countries. They also requested that the Australian Federal Police and the New Zealand Police monitor the child's name on the Family Law Watchlist to enforce this order. The primary legal issue before the court was whether the applicants had established a sufficient risk of the child being removed from Australia or New Zealand by the child's father, Mr. Dieter, or his parents, to warrant the imposition of a watchlist order. The court had to weigh the applicants' concerns against the potential infringement of the father's and his parents' rights to travel with the child.
The court found that the applicants had not met the required standard of proof, which was the balance of probabilities, to establish the risk of the child being removed from Australia or New Zealand. The court noted that the evidence presented by the applicants lacked context and did not sufficiently demonstrate a clear risk of removal. Additionally, the court determined that the applicants' case for re-litigating the parenting issues was not well-supported and their request for a watchlist order was considered a vexatious proceeding. Consequently, the court dismissed the applicants' application for a watchlist order and found that the proceedings were vexatious.
In light of the court's findings, it ordered that the applicants pay the costs of the proceedings as sought by the father. The court made this decision based on the applicants' unsuccessful application and the vexatious nature of the proceedings. The court calculated the costs in accordance with the relevant schedule to avoid any further disputes regarding the quantum of costs. The court ordered that the applicants pay the costs sought by the father, acknowledging that while it may be uncertain whether the applicants would satisfy any order for costs, this was not a reason to not make such an order in all the circumstances.
The court found that the applicants had not met the required standard of proof, which was the balance of probabilities, to establish the risk of the child being removed from Australia or New Zealand. The court noted that the evidence presented by the applicants lacked context and did not sufficiently demonstrate a clear risk of removal. Additionally, the court determined that the applicants' case for re-litigating the parenting issues was not well-supported and their request for a watchlist order was considered a vexatious proceeding. Consequently, the court dismissed the applicants' application for a watchlist order and found that the proceedings were vexatious.
In light of the court's findings, it ordered that the applicants pay the costs of the proceedings as sought by the father. The court made this decision based on the applicants' unsuccessful application and the vexatious nature of the proceedings. The court calculated the costs in accordance with the relevant schedule to avoid any further disputes regarding the quantum of costs. The court ordered that the applicants pay the costs sought by the father, acknowledging that while it may be uncertain whether the applicants would satisfy any order for costs, this was not a reason to not make such an order in all the circumstances.
Orders
Orders of the court
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Background
Background to the litigation
The application listed for hearing before me in the Judicial Duty List was the applicants Application in a Case filed on 5 July 2021 seeking an order in the following terms:That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, Mr Dieter, Ms Mahoney and Mr Mahoney their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X (DOB …/…/2011) from the Commonwealth of Australia or from New Zealand for a period of eight (8) years to any destination other than the Commonwealth of Australia or New Zealand.AND IT IS REQUESTED that the Australian Federal Police and the New Zealand Police give effect to this order by placing the name of the said child X (and the name X) on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and New Zealand and maintain the child's names on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties.BACKGROUND The child the subject of these proceedings is X (“the child”) born in 2011 who is 10. The first named applicant Mr Mahoney is the step-father of the child and the husband of Ms Mahoney the second named applicant and mother of the child (“the mother”). The respondent, Mr Dieter is the child’s father (“the father”). As referred to by Bennett J in her reasons delivered on 14 August 2020 Mr Mahoney 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 parties were all born in New Zealand and the applicants continue to reside in New Zealand. The father lived in Melbourne as a child before returning to New Zealand as an adult and now resides with the child in the Melbourne. Although there have been numerous hearings in this matter and the history has been covered in great detail in the various judgments that have been delivered some background is required as part of these reasons. The parties have been engaged in litigation both in New Zealand and Australia since 2014. Parenting proceedings commenced in New Zealand following the child being removed from the mother’s care and placed in foster care by New Zealand’s child welfare authorities. On 7 April 2017, following a contested hearing in the Family Court of New Zealand, Moss J made orders which were subsequently registered in this Court which provided for the child to live with the father and permitted him to relocate to Australia with the child. The orders further provided for the child to spend professionally supervised time with the mother on two occasions each school holidays with the father to pay for the child’s travel to New Zealand to enable such time to occur and for the child to communicate with the mother via Skype once per week with said Skype calls to be recorded and supervised by the paternal grandmother or the father. Although the mother appealed Moss J’s decision her appeal was not successful.
Evidence
Evidence Before The Court
In this case there is no travel proposed other than to New Zealand for the purposes of the orders for the child to spend time with the mother when boarder restrictions permit. Although that would not preclude the Court making a watch list order the injunction sought by the applicants clearly impinges on the rights of the father and/or his parents to travel with the child and that being the case the Court must weigh that up against the risk of the father and/or his parents removing the child and not returning her to Australia in order to thwart the Court’s jurisdiction, that being the basis upon which the applicants put their case. The onus of establishing that risk falls on the applicants. THE EVIDENCE The standard of proof in this Court is the balance of probabilities. Pursuant to s 140 of the Evidence Act 1995 (Cth) the Court in applying that standard must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged. In circumstances where the evidence has not been tested it is not possible to make findings of fact where that evidence is in dispute. The applicants relied upon their Application in a Case filed 27 June 2021, the Affidavits of Mr Mahoney filed 27 June 2021, 8 August 2021 and 14 June 2020, the Affidavit of Ms Mahoney filed 12 October 2020 and a Notice of Risk filed 29 August 2021. The father relied upon his Response filed 17 August 2021, his Amended Outline of Case filed 21 September 2021, the Affidavits of Mr Dieter filed 17 August 2021 and 25 August 2021, the Affidavit of M Q filed 20 September 2021, and the Schedule of costs dated 21 September 2021. Both the applicants and the father filed a case outline and submissions in support of their cases. In my view the evidence upon which the applicants rely in support of their case that the parenting issues should be re-litigated and the child live with them lacks context and it is not simply, as the applicants appear to have assumed, a matter of identifying a timeline. Although, given the way the applicants put their case in support of their application for a watch list order it is necessary to have some understanding of their case in support of re-litigating the parenting issues, I cannot, nor in my view is it necessary, to make findings with respect to the relevance of the evidence upon which they rely. DISCUSSION The parties are currently awaiting the hearing of the threshold question of whether circumstances have changed to the extent that the arrangements for the care of the child should be re-litigated. The applicants third such application. As previously referred to the applicants’ filed detailed affidavits and relied on lengthy and factually complex written and oral submissions in support of their case. Although it is somewhat difficult to follow their reasoning doing the best I can it is the father’s alleged failure to consult and provide information about the child’s welfare to the mother, thereby not having met his obligation to “jointly co-parent” with the mother in the exercise of parental responsibility, that underpins the applicants case that they be permitted to re-litigate the parenting issues. The applicants also submit that the father and his legal representatives have withheld information from the Court over a number of years thereby perverting the course of justice and that this fraudulent and unethical conduct is relevant to the question of the risk of the father and/or his parents removing the child from Australia in order to prevent the Court making the orders they seek. It is further submitted that that it is the Court’s usual practice to make watch list orders in cases where there is a “low degree of parental co-operation and a high degree of parental conflict” as they assert is the position in this case.
Decision
Reasons for decision
The other matter that stands out in this case is that, not only were the applicants wholly unsuccessful, I have found that their application for a watch list order was a vexatious proceeding. Conclusion In all of the circumstances I am satisfied that there are circumstances in this case that justify an order for costs. Rule 12.17(1)(a) provides that the Court can make an order for a specific sum. Although I am not confident that the applicants will satisfy any order for costs made against them, and they said as much during the hearing, that is not a reason not to make that order. In all of the circumstances the costs having been calculated in accordance with the relevant schedule and in order to avoid any further dispute as to the quantum of costs I propose to make an order for costs in the quantum sought by the father.
Ratio Decidendi
Legal Principle Established
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