Mahoney & Dieter (No 4)

[2024] FedCFamC1F 813

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mahoney & Dieter (No 4) [2024] FedCFamC1F 813

File number(s):

MLC 4348 of 2020

Judgment of:

BENNETT J

Date of judgment:

28 November 2024

Catchwords:

FAMILY LAW – CHILDREN – parenting orders – where mother and stepfather seek parenting orders for child now aged 13 years – where child has been subject of proceedings in New Zealand prior to relocation to Australia with father – where child was removed from mother and stepfather mid-way through New Zealand proceedings and placed in foster care – where comprehensive findings were made by New Zealand trial judge – where this court can adopt findings and evidence before the New Zealand court and does so – where issue estoppel is available but not binding

FAMILY LAW – CHILDREN – emotional and psychological risk to child – where mother makes allegations of rape by the father – where mother is unreliable witness – where rape allegations were comprehensively litigated in New Zealand – where New Zealand court did not accept the mother’s evidence – where New Zealand court did not accept rape allegations – where evidence of fixed belief is relevant to risk currently posed to the child – where litigation upon relocation of child to Australia continued –where it would be damaging of the child to learn of these allegations outside of a controlled therapeutic space – where face to face tie and communication must be supervised

FAMILY LAW – CHILDREN – parenting orders – where mother and stepfather have always sought relocation of child to New Zealand to live with them –  where mother and stepfather currently only have supervised time – where current interim orders from 2020 require mother and stepfather to pay for travel due to outstanding costs order–where mother and stepfather altered position in last days of 27 day parenting trial – where mother and stepfather now seek modest increase in supervised time and no longer pursue a relocation or unsupervised time proposal – where mother and stepfather have not established that there should be relaxed supervision

FAMILY LAW – CHILDREN – meaningful relationship – where there is an existing relationship between child and mother – where risk posed by mother’s fixed belief outweighs any benefit to the child of expanding that relationship – where child has ASD diagnosis – where child has anxiety diagnosis

FAMILY LAW – CHILDREN – sole parental responsibility – high conflict– where father currently only communicating with mother through paternal grandmother – where both mother and father are unable to communicate with each other – where mother is ‘triggered’ by father – where father views mother and stepfather as ‘evil’ – where equal shared parental responsibility impractical – where mother and stepfather have previously interfered with medical treatment for the child recommended by experts – where mother and stepfather have threatened medical experts with litigation

FAMILY LAW – EVIDENCE – expert evidence – where there is a private Single Expert Report and Court Preliminary Family Report– where Expert is in favour of increased time for mother with child – where evidence of Report Writers is substantial and very helpful to the Court – Reeves & Grinte – where there were 27 days of trial – where Court can make own observations of behaviour of parties during the course of the trial – where court does not follow all recommendations of expert witness

FAMILY LAW - SELF REPRESENTED LITIGANTS – evidence – where while questions asked are not in themselves evidence they can form part of Court’s impression of the character of the self-represented litigant – where mother was represented by stepfather – where stepfather was bullish, intemperate and rude – where stepfather was a professional in New Zealand– where stepfather resigned his professional qualifications – where stepfather has represented himself and the mother since at least 2017 – where stepfather has said he will exhaust every avenue – where stepfather and mother seek ‘atonement’ – where ‘atonement’ included a four stage program of repentance

FAMILY LAW – VEXATIOUS PROCEEDINGS – where there are two previous vexatious proceedings orders – where mother and stepfather brought contravention applications regarding time not spent due to the COVID-19 pandemic – where contravention applications subject to security for costs not paid – where contravention applications withdrawn late in the proceedings following days of evidence – vexatious proceeding order made – costs reserved

Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:

Adler & Parrow [2024] FedCFamC1A 192

B & J [2009] FamCAFC 103

Bloomberg & Rod [2010] FamCAFC 112

CMM v Commissioner of Inland Revenue [2022] NZFC 3803

Gebrien v Todd (Family Court at City H, 2015)

Gebrien v Todd [2015] NZFC 4949

Gebrien v Todd [2015] NZFC 8763

Gebrien v Todd [2015] NZFC 9485

Gebrien v Todd [2015] NZFC 10747

Gebrien v Todd [2016] NZFC 8693

Gebrien v Todd [2017] NZFC 2493

Hayman and Hayman (1976) 2 Fam LR 11, 558

In the Marriage of Schorel [1990] FLC 92-144

Mahoney & Dieter [2019] FamCA 633

Mahoney & Dieter [2021] FedCFamC1F 111

Mahoney & Dieter (No 3) [2022] FedCFamC1F 151

Mahoney and Anor & Dieter [2020] FamCA 667

Newling & Mole (1987) FLC 91-856

Re B (Minors) (Care Proceedings: Evidence) [1997] 2 All ER 29

Reeves & Grinte [2017] FamCAFC 19

Rice & Asplund (1979) FLC 90-725; (1978) 6 FamLR 570

Division:

Division 1 First Instance

Number of paragraphs:

621

Date of hearing:

6, 7, 8, 9, 10 February 2023, 13, 14, 15, 16, 17 February 2023, 22, 23, 24, 25, 26 May 2023, 1, 2, 3 November 2023, 6 November 2023, 13, 14, 15, 16, 17 November 2023, 22 November 2023, 27 November 2023, 16 January 2024

Place:

Melbourne

Counsel for the Applicants:

The Second Applicant appearing on behalf of the Applicants

Counsel for the Respondent:

Ms Harris

Solicitor for the Respondent:

Melbourne Family Lawyers

Counsel for the Independent Children's Lawyer:

Mr Ham

Solicitor for the Independent Children's Lawyer:

Southern Family Law

ORDERS

MLC 4348 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MAHONEY

First Applicant

MR MAHONEY

Second Applicant

AND:

MR DIETER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	28 NOVEMBER 2024

Amended pursuant to rule 10.13 of the Family Law Rules 2021 on 29 November 2024

THE COURT ORDERS THAT:

1.All parenting orders be and are hereby discharged including the order made in the Family Court of New Zealand in 2017 and registered in The Family Court of Australia in 2018 in proceedings number MLC11835 of 2017, for the parenting of the child X born in 2011 (herein referred to as the “child” or “X”).

PARENTAL RESPONSIBILITY

2.The father have sole parental responsibility for X for all matters excluding religion with the effect that there is no order allocating parental responsibility for religion.

3.The child, previously known as X MAHONEY born in 2011, now be known as X DIETER.

4.The father apply to the Victorian Registry of Births Deaths and Marriages to register the change of the child’s name, in accordance with Order 3, and do all such acts and things and sign all such documents as may be required to give effect to that registration.

5.For the avoidance of doubt, the father is authorised to do all acts and things and solely sign all documents necessary to cause X’s registered name to be changed to X DIETER including with any authority, institution or other organisation including for the purposes of any Australian passport or other identifying documentation.

6.The parties be restrained from causing or suffering or permitting the name of the child to be further changed without further order of the Court and/or from being known by any name other than X DIETER.

7.The father forthwith authorise and facilitate the mother accessing X’s school records, including via the “[…] Portal” for any school attended by X (noting that the mother already has access to the Portal for Z School).

8.The father provide by way of a copy report, where a report is produced, but otherwise by written communication, information relating to any major medical treatment undertaken by X to the mother within 7 days of such treatment being undertaken or report being made available, whichever is the latter, unless X is required to have treatment for a serious not previously known illness or in circumstances of emergency and then to provide such information as soon as possible thereafter.

9.The mother within 7 days of receiving such treatment plan may provide her views as to the planned treatment to the father in writing, but such views are not binding on the father. The mother and stepfather are restrained from having any communication in any way with such treatment providers.

Pursuant to sections 7 and 11 of the AustralianPassports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the mother to enable the child of the relationship, X DIETER born 2011, to obtain an Australian Passport to travel out of Australia.

IT IS ORDERED BY THE COURT THAT:

10.The father of the said child, X DIETER be permitted to apply for an Australian Passport to enable the child to leave Australia notwithstanding that the mother of the child has not signed the passport application form and furthermore the said child be permitted to leave Australia without the permission of the applicant mother.

11.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) IT IS REQUESTED, that the Department of Immigration and Citizenship forthwith do all acts and things to issue an Australian passport in the name of the child.

12.The respondent father be and is hereby restrained from relocating the residence of X to a place outside the Commonwealth of Australia without further order of the Court and without notification not less than 60 days prior to the mother and stepfather.

LIVE WITH, SPEND TIME WITH AND COMMUNICATE WITH

13.The child live with the father.

14.X spend time and communicate with the mother as follows:

(a)By electronic means as may be agreed between the parents, communication commencing at 6:30pm AEST or AEDT for 20 minutes, on Monday and Thursday, on X’s birthday, on Mother’s Day, the mother’s birthday, the stepfather’s birthday and on Christmas Day, and other times or days as are agreed between the parents in writing or email, and the stepfather may join the conversation for the second 10 minutes of any session but not be present or within earshot or be able to be heard for the first 10 minutes. Such communication may be recorded by the mother, father and/or stepfather if they wish to do so. The communication can be supervised by either the father or paternal grandmother who may be in the room but not be visible on screen.

(b)Sessions of supervised face to face contact take place on each of the 3^rd Saturday and 3^rd Sunday in January each year unless another time is agreed in writing between the parties, such time to be supervised by a paid supervisor or supervisors from an organisation recognised as suitable for the supervision of time, by the Family Court in New Zealand or Oranga Tamariki Ministry for Children in New Zealand, for a period of up to eight (8) hours to take place as follows:

(i)The sessions are to take place in City H New Zealand, unless another location in New Zealand is agreed between the parties in writing; and

(ii)The stepfather may attend for part or all of the sessions; and

(iii)The supervision of sessions to be paid for by the mother; and

(iv)The venue or venues of the sessions be arranged and agreed between the supervisor and the mother, but not take place at the home of the mother and/or the stepfather; and

(v)The airfares for X and an accompanying adult to fly from Melbourne to City H to spend time with the mother and the stepfather and the return airfares to Melbourne (noting such flights may not necessarily be direct flights between Melbourne and City H, but may be routed through other international airports either in Australia or New Zealand) be paid by the mother and stepfather as follows:

A.From 2026, the father book economy flights on a premium airline by the 1^st September each year, and advise the mother and stepfather of the details of such booking including any reference number and the mother and stepfather pay for the flights within the 24 hour period for which the airline or travel agent holds the booking; and

B.For 2025, the father book and pay for flights by not later than 15 December 2024 and advise the mother and stepfather accordingly; and

C.In the event that payment is not made by the mother as provided for in A herein, then X not attend for time with the mother in New Zealand in January of that year; and

D.Upon the mother and stepfather discharging the whole of the debt due to the respondent father pursuant to the costs orders in the sum of $14,362.22, the costs of X attending time with the mother in New Zealand shall be shared by the parents with the mother meeting the costs of the child and accompanying adult flying to New Zealand via the mechanism provided for in A herein and the respondent father meeting the costs of the return flights. In the event that the mother fails to meet the costs of the flights as provided for herein then the child will not travel to New Zealand in that holiday period.

(c)Provided that the mother gives 30 days’ notice in writing to the respondent father in advance of her travel to Melbourne, Australia, the mother have up to two sessions of up to six hours each of supervised contact provided by a child contact agency, to take place in Melbourne at any time between the hours of 9:00am and 7:00pm, up to four times in any calendar year from 2025.

(d)The mother is to meet all costs of the supervised contact as allowed for in order (c) above and meet the costs of her own travel and accommodation.

(e)The stepfather may attend for part or all of any supervised contact session taking place in Melbourne, Australia.

15.Within 7 days, the Independent Children’s Lawyer meet with X, and if practicable with Ms DD, to explain to X the reasons why she lives in Australia with her father and paternal grandmother and has restricted and supervised face to face time and electronic communication with the mother and stepfather, having regard to paragraph [599] [598] of my reasons.

16.The father do all acts and things necessary to facilitate the meeting between X and the Independent Children’s Lawyer including arranging an appointment with the Independent Children’s Lawyer and thereafter ensuring X’s attendance at the place and time nominated by the Independent Children’s Lawyer, whether that be in person or via a digital platform.

17.The father be and is hereby restrained from pursuing any application to enforce the costs orders or part thereof in New Zealand and such restraint is conditional upon the mother and stepfather making payment for the airfares as provided in for Order 15(v)(A) herein and this restraint shall lapse upon the failure of the mother and the stepfather to meet the airfare costs as provided for in these Orders.

VEXATIOUS PROCEEDINGS ORDER

18.I DECLARE that the Contravention Application filed on 4 February 2021 is a vexatious proceedings as prescribed by s 102QB(1) of the Family Law Act 1975 (Cth) (“the Act”).

19.Pursuant to s 102QB(2)(b) of the Act, the mother and stepfather jointly and/or severally be and are hereby prohibited, for a period of four years, from commencing proceedings in any court having jurisdiction under the Family Law Act 1975 with respect to: -

(a)the parenting of the child X; and/or

(b)the enforcement of any parenting order made by this Court with respect to X; and/or

(c)any alleged contravention of any parenting order made by this Court with respect to X; and/or

(d)a contempt application against the father, Mr Dieter;

without first obtaining the leave of the Court as prescribed by s 102QG of the Family Law Act 1975 and any such application made by the mother and stepfather or either of them is not to be served on or otherwise brought to the attention of the father until and unless the Court directs otherwise.

OTHER

20.The mother and stepfather be at liberty to send cards and/or gifts to X subject to the following: -

(a)All cards and/or gifts be delivered by international mail and/or provided to X during supervised in person contact; and

(b)Any material sent by the mother and stepfather by international mail be able to be read and inspected by the father and, if he deems the gift and/or card to be inappropriate, he may not provide it to X and advise the mother and stepfather of same by email.

21.The mother, father and stepfather be and are hereby restrained from making derogatory comments about each other or any member of their households in the hearing of X or in circumstances where such comments may come to her attention.

22.The father is permitted to provide a copy of these Orders to all treating medical practitioners, therapeutic providers and any school at which the child may from time to time attend and to any supervisor of time spent.

23.The father is permitted to provide a copy of the reasons for judgment to all treating medical practitioners and therapeutic providers at which the child may from time to time attend and to any supervisor of time spent.

24.The mother and stepfather are permitted to provide a copy of this Order and reasons to any legal advisor or medical practitioner or provider of therapy or education or training.

25.The Independent Children’s Lawyer to provide a copy of this Order and reasons by electronic means to Ms E and Dr BB.

26.Each parent is to have a copy of X’s ‘Life Book’ as prepared by Oranga Tamariki. The mother and stepfather may then use the book with X to facilitate conversation, and to enable X to ask questions about her life in New Zealand. This may occur only at face-to-face contact, and when supervised by a professional supervisor. The Life Book is not to be referred to or used during online communications.

27.The parties have liberty to apply with respect to any matters arising pursuant to rule 10.13 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

28.The Independent Children’s Lawyer is discharged upon after the expiration of a period of 7 days after the appeal period has expired.

29.Otherwise, the Initiating Application filed by the mother and stepfather on 2 May 2020 as amended and the father’s response thereto be and are hereby dismissed and this matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

AND THE COURT NOTES THAT:

A.The father will use his best endeavours to support and promote X’s contact with other members of the mother’s family and Ms E, including but not limited to enabling X to visit such family members at their home/s in New Zealand.

B.The contact supervisors be advised that physical touch between the mother and the child and/or the stepfather and the child is permitted, but that supervision is intended to ensure that derogatory comments are not made by the mother and stepfather or either of them about the father or a member of his family nor any discussions initiated by the mother and stepfather or either of them concerning X’s birth or conception

C.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

D.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION	[1]
ONUS OF PROOF	[16]
ARE FURTHER PARENTING PROCEEDINGS JUSTIFIED?	[17]
FINDINGS OF FACT	[22]
THE LAW IN RELATION TO PARENTING	[40]
FAMILY CONSTELLATION	[55]
Maternal Family	[55]
Paternal Family	[66]
THE HEARING	[69]
Representation	[69]
Conduct of the hearing	[73]
ORDERS SOUGHT BY THE PARTIES	[90]
The mother and stepfather	[90]
Joint Proposal of the father and the Independent Children’s Lawyer	[94]
DOCUMENTS RELIED UPON	[97]
The mother and stepfather	[97]
The father	[101]
The Independent Children’s Lawyer	[102]
RELEVANT BACKGROUND	[103]
Relationship between Ms Mahoney and Mr Dieter	[103]
New Zealand Proceedings	[131]
June 2015	[144]
Early October 2015	[165]
Late October 2015	[166]
December 2015	[169]
October 2016	[180]
April 2017	[191]
Australian proceedings and concurrent Child Support proceedings in New Zealand	[206]
MLC11835/2017 and related Appeal(s)	[206]
MLC4348/2020	[239]
THE PARTIES	[291]
The mother	[291]
The stepfather	[332]
Conduct during proceedings	[337]
Evidence	[340]
Provision of documents to Dr BB in breach of direction	[354]
Conclusions as to credit	[362]
The father	[370]
THE CHILD	[389]
EXPERT EVIDENCE	[409]
Ms DD	[413]
Dr BB	[425]
Evaluation of Expert Evidence	[457]
MS Q	[466]
APPLICATION OF THE LAW TO THE FACTS	[483]
Primary Considerations	[483]
Meaningful relationship with both parents	[484]
The need to protect the child’s relationship with her only viable caregivers	[493]
Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence	[501]
Additional Considerations	[504]
The views of the child and factor’s underlying those views	[504]
The nature of the child’s relationships	[508]
Other relationships	[515]
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend with the child and to communicate with the child	[525]
The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child	[531]
The likely effect of any changes in the child’s circumstances	[539]
Practical difficulty and expense associated with face-to-face time and/or communication with the other parent	[543]
The maturity, sex, lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child the Court feels are relevant	[546]
Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to the child	[551]
Capacity of the parents to meet the child’s needs, the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents	[554]
PARENTAL RESPONSIBILITY	[570]
SPEND TIME / COMMUNICATION ORDERS	[587]
SPECIFIC ISSUES	[591]
X’s name	[591]
Child to have orders explained to her	[597]
VEXATIOUS LITIGANT APPLICATION	[601]
Previous proceedings instituted by the Applicants and consideration of previous orders	[607]
Overall conduct of the applicants	[610]
Was the contravention application filed 14 June 2020 a vexatious proceeding?	[613]
Was the initiating application filed 2 May 2020 (as amended) a vexatious proceeding?	[620]
Conclusion on vexatious proceedings	[621]
CONCLUSION	[623]
COSTS	[624]

BENNETT J

INTRODUCTION

1. This matter concerns the parental responsibility, spend-time and electronic communication arrangements for X born in 2011 (“X” or “the child”).  X is the only child of Ms Mahoney (“the mother”) and Mr Dieter (“the father”). She is 13 years old. X lives with her father in Melbourne. They reside in the home of the father’s mother, Ms Q (“the paternal grandmother”) and the paternal grandfather. The mother and her husband, Mr Mahoney (“the stepfather”), live in New Zealand at an address they do not want disclosed to the father.

2. The extant parenting orders for residence, spend time and communication are a combination of the order made in the Family Court in New Zealand in April 2017, revised in August 2018 (“the New Zealand Order”) after two years of extensive litigation which allowed the father to relocate X’s residence to Melbourne, and orders of this Court made by consent on 29 July 2022 that varied the New Zealand Order. In summary, the current parenting arrangements for X are as follows:

   ·X lives with the father in Australia.

   ·The Mahoneys spend time with X in New Zealand for two professionally supervised face to face visits of, initially, not more than three hours in each school holiday.

   ·The New Zealand visits are facilitated by the paternal grandmother who travels with X to, and stays in, New Zealand four times a year so the supervised time can take place.

   ·The father was initially responsible for the travel and accommodation costs and general living expenses for X’s four school holiday visits to New Zealand each year.  The Mahoneys were, and remain, responsible for the cost of supervision which is provided commercially. On 29 July 2022 it was ordered that, henceforth, the Mahoneys also pay and be responsible for the cost of travel but that any amount spent be credited against legal costs owed by the Mahoneys to the father. At that time, the total liability of the Mahoneys to the father for legal costs was $14,362.22 referrable to Orders made on 29 March 2021 by Justice McEvoy and on 8 October 2021 by Justice MacMillan. The Mahoneys have not provided any travel and accommodation costs for X and the paternal grandmother to travel to New Zealand since the Order was made on 29 July 2022 with the result that they have not had supervised time in New Zealand since the first school term holidays in 2022. The Mahoneys last spent face to face time with X when they were in Melbourne for the first two weeks of this hearing in 2023. The Mahoneys paid for commercial supervision of their time.

   ·The mother communicates with the child by way of recorded and supervised videoconference each Monday and Thursday commencing between 6:30pm and 7:00pm for 30 minutes, and a further 30 minutes on special occasion days, with the stepfather not to be present for the first 15 minutes.

   ·On 26 May 2023, I made an Order for videoconference time between X and the mother and stepfather to occur a third time per week from 9.30am to 10.00am on Saturdays with the stepfather not to be present for the first 15 minutes.

3. These proceedings were commenced by the Mahoneys as a relocation application seeking that X live predominantly in New Zealand.[1] Under cross-examination, however, they each waxed and waned as to what orders they sought. The stepfather’s closing address was on the basis of an increase in time and a decrease in supervision, notwithstanding that he sought orders, in the terms of a minute, which provided for a decrease in time and a continuation of supervision. Because of the inconsistencies in the applicants’ case, it is appropriate that I deal with the outcome which they sought in the minute of order (Exhibit M22) as well as the outcome which they pressed for the overwhelming majority of the trial and spoke to in final submissions. I understand that the stepfather’s explanation for the incongruity between his final submissions and the orders sought is: [2]

   Well, ma’am, these submissions are not just with you, for respect. They’re included on the transcript, so they might be used by a later court, so I would like to make sure I at least get them down.

   [1] Amended Initiating Application filed 25 June 2022. See also, for example, the document titled “Revised draft orders of Applicants dated 6 February 2023” filed on 6 February 2023.

   [2] Transcript November 2023, p.38 lines 43–45.

4. There were two expert witnesses. Ms DD is a Court Child Expert/Family Consultant who prepared a Family Report on the threshold issue of Rice v Asplund which was released to parties on 10 June 2022. Dr BB is a private Family Report Writer and psychologist who prepared the Single Expert Report in these proceedings which was released on 30 November 2022.

5. The mother and stepfather seek equal shared parental responsibility as between the father and the mother,[3] that X live with the father provided he remains living with the paternal grandmother and that X make a single annual visit to New Zealand for three sessions of contact each of eight hours duration over three consecutive days with such time to be supervised by either a family member or a paid supervisor from a contact centre, with the cost of the sessions to be paid by the mother and the flights by the father. The mother and stepfather wanted to include the option of spending some of the three occasions with X in Town CC with the mother’s family with either a paid supervisor or family member acting as a supervisor. However, Counsel for the father, Ms Harris, contacted the mother’s relatives and asked for their consent to host and/or supervise, some of the Mahoneys’ time with X. Ms Harris tells the Court that the Mahoneys could not obtain agreement from X’s mother’s relatives to have a supervisor stay in their home. In final submissions Mr Mahoney suggested a solution might be that X stay with her family in Town CC and supervised contact occur at a centre in Town CC rather than in another city in New Zealand.[4] They also sought communication of two videoconferencing sessions for 20 minutes each week. In a further departure from their original orders, the Mahoneys also proposed a name change from X Mahoney to X Mahoney DIETER (where Dieter is her sole family name) on the proviso that the father forgive and forego any outstanding costs owed to him by the Mahoneys ($14,362.22) and any outstanding child support (unquantified).

   [3] Amended minute of final orders sought by the mother and stepfather 16 November 2023 (Exhibit M22).

   [4] Transcript November 2023, p.87 line 30 to p.88 line 2.

6. The father seeks sole parental responsibility for all things other than for change of name, religion and residence outside of Australia and that X live with him. [5] He also proposed two videoconferencing sessions a week for 20 minutes each and a further session on special occasions. By way of time spent, the father seeks that X have supervised time with the mother of up to six hours on the third Saturday and third Sunday in January each year, in City H or as otherwise agreed, with the cost of supervision and travel to be paid for by the Mahoneys.  The father proposes that the stepfather can attend for part or all of those two sessions per year. The father also proposes that up to four times in any 12-month period, the mother can have two supervised visits each of up to six hours in Melbourne upon the mother providing 42 days’ notice of her intention to be in Melbourne.

   [5] Amended minute of final orders sought by the respondent father dated 20 November 2023 (Exhibit F60).

7. The Independent Children’s Lawyer supports the father’s case but proposes that the father have sole parental responsibility for all matters and an order restraining the father from relocating with the child outside of Australia and a prohibition on any further name changes. [6]

   [6] Minute of final orders sought by the respondent father and the Independent Children’s Lawyer (Exhibit F60).

8. The paternal grandmother, Ms Q, is an integral part of X’s life but is not a party to these proceedings. Ms Q is a witness. She has facilitated the face-to-face time between X and the Mahoneys by taking X to New Zealand four times a year since 2017 save for during the COVID pandemic when travel between Australia and New Zealand was severely disrupted. The paternal grandmother deposes that the ordered contact arrangements in New Zealand had been adhered to strictly until pandemic travel restrictions intervened. There was only one visit in the period 2020 to 2022, in 2021. There have been no contact visits in New Zealand following the variation of payment arrangements on 29 July 2022, through no fault of the father or paternal grandmother.

9. The paternal grandmother also facilitates time between X with the mother’s family of origin in New Zealand, when she brings X to see the mother, and does so without compulsion of Court orders. The last such occasion was in 2022 which was also the last time that X was in New Zealand to spend time with her mother.

10. The care arrangements for X come after long standing proceedings in New Zealand and Australia.  Except for the application of the father filed in January 2014, in which he sought orders to spend time with X, all applications, contravention applications and appeals have been initiated by the mother or the stepfather or the Mahoneys together.  All parenting applications in New Zealand were heard in the Family Division of the District Court of New Zealand and determined by a New Zealand judge who has written a series of clear and impressive judgments. At an early hearing before me I obtained permission from the parties to have direct judicial communications with a New Zealand judge for the purpose of obtaining a comprehensive set of relevant documents from the New Zealand proceedings. I understand that the New Zealand judge collated all of the documents sent to Australia. There has been no communication between the New Zealand judge and myself. All documents received were shared with the parties and many were tendered.

11. The decisions of the New Zealand judge are summarised below. The mother and stepfather did not agree with the decisions of the New Zealand judge but did not appeal any of them.

12. The mother filed an application initiating proceedings in this Court  a number of days after the expiration of the New Zealand Wardship Order on 14 November 2017 (matter number MLC11835/2017). It was the first of many applications. Those proceedings, summarised below at [206], were discontinued on 16 September 2019. These proceedings (MLC4348/2020) were initiated by a joint application of the mother and stepfather filed on 2 May 2020, eight months later.

13. After 27 days of hearing evidence, I have concluded that the orders sought in the respective minutes be made. Where they differ, I find that the supervised time can be of eight hours duration as sought by the mother and stepfather, and that there can be video communication on the stepfather’s birthday. Costs of travel will continue to be the responsibility of the mother and stepfather with an amount equivalent of any costs so paid being deducted from costs orders which are outstanding as being owed by the Mahoneys to the father. The one exception is that the father will be solely responsible for payment of the travel expenses for X and the paternal grandmother to visit New Zealand in January 2025 so that X can have supervised time with the mother and stepfather on two consecutive days.

14. I have exceeded to the recommendation of Dr BB, expert witness, that X should have explained to her why the arrangements for her to see and communicate with her mother and stepfather are so restricted. There is a guide of what X is to be told by a Family Consultant attached to Registry.

15. This is a fact-rich case which has resulted in regrettably long reasons for decision. However, as Dr BB observed, it is necessary to draw out a number of issues which pertain to X’s situation which began before her birth with the death of her half-brother Mr J and which continue up until now.

    ONUS OF PROOF

16. Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.

    ARE FURTHER PARENTING PROCEEDINGS JUSTIFIED?

17. The Act specifically authorises reconsideration of parenting orders. Section 65D provides:

    65D     Court’s power to make parenting order

    (1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting orders as it thinks proper.

    (2) Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

18. However, use of the power to vary, suspend or discharge an order is predicated on adherence to the provisions of Part VII of the Family Law Act 1975 (Cth) (“Act”) and the mandatory requirement in s 60AC of the Act that, in deciding to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. The decision in Rice & Asplund (1979) FLC 90-725; (1978) 6 FamLR 570 is enduring authority for the proposition that the Court will not permit repeated parenting applications unless it can identify a material change in the child’s circumstances such as to warrant a reconsideration of parenting arrangements.

19. In deciding whether it is in the best interests of a child to permit further litigation about arrangements to parent them, I take into consideration any prior decision of the Court and reasons for it: Hayman and Hayman (1976) 2 Fam LR 11, 572–3, although I am not necessarily bound by prior decisions. There have been numerous decisions by a judge in New Zealand traversing a lot of evidence and explaining why orders, including why X was removed from her mother and stepfather and placed into foster care and culminating in the Order of April 2017, were made by that court.

1. In my previous decision Mahoney & Dieter (No 3) [2022] FedCFamC1F 151, I recorded that:

   [6]The rule in Rice & Asplund is aimed at preventing a party from re-litigating simply in the hope of obtaining a more favourable result from a re-exercise of a discretion. The purpose of it is to protect children, such as [X], from the disruption and uncertainty of serial litigation. In cases subsequent to Rice & Asplund this Court has confirmed that the rule operates to protect the child based on the best interests not being served by repeated applications to vary orders.

   […]

   [8]In my view, the proceedings about [X] should not advance without an examination of the Rice & Asplund considerations, but a necessary step in those considerations is to check to see [X’s] current situation and have an appropriately trained expert retained by the Court render an opinion on whether further litigation in relation to [X] is likely to produce a result which is better for her than her current circumstances. Change in circumstances is insufficient to re-open proceedings. There must be a change in circumstances which the best interests of the child impels the Court to look again at the parenting arrangements. 

   […]

   [10]If the section 62G report says that [X] is coping well or that father has matters in hand then it is unlikely that the application made in May 2020 by the mother and the stepfather, [Mr Mahoney], will survive the Rice & Asplund test. If [X] is not travelling well, the family report may serve to identify the matters in respect of which the mother and stepfather should be able to re-litigate; we will have to wait and see.

2. The s 62G report was not conclusive on their being a change in circumstances. However, having heard all the evidence, I accept that it is untenable for the current orders to continue and that it is time to look again at the parenting arrangements for X.

   FINDINGS OF FACT

3. In these reasons, a statement of fact is a finding of fact.

4. These proceeding cannot be regarded in isolation from the proceedings in New Zealand including the seven decisions of a New Zealand judge, being:

   ·June 2015 as to removal of X from her mother’s care: Gebrien v Todd (Family Court at City H, 2015) (Exhibit ICL1);

   ·July 2015 as to day to day care, contact and protection: Gebrien v Todd [2015] NZFC 4949 (Exhibit ICL 2);

   ·Early October 2015 giving directions and resolving interlocutory evidential matters: Gebrien v Todd [2015] NZFC 8763 (Exhibit C11);

   ·Late October 2015 as to transitional placement while the child is under the guardianship of the court: Gebrien v Todd [2015] NZFC 9485 (Exhibit ICL3);

   ·December 2015 as to day-to-day care & wardship: Gebrien v Todd [2015] NZFC 10747 (Exhibit C9);

   ·October 2016 as to contact: Gebrien v Todd [2016] NZFC 8693 (Exhibit C10); and

   ·April 2017, revised in August 2018 as to parenting contact and relocation: Gebrien v Todd [2017] NZFC 2493 (Exhibit ICL4).

5. There are three bases by which I can adopt the factual findings, decision or judgments of other proceedings, including factual findings and decisions, in relation to X made a judge in New Zealand and others. These are:-

   (a)By tendering the decisions;

   (b)Issue estoppel;

   (c)Section 69ZX(3) of the Act.

6. First, the decisions can be tendered into evidence. Section 91 of the Evidence Act 1995 (Cth) provides that evidence of a decision or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding (s. 91(1)). Evidence that, under Part 3.5 is not admissible to prove the existence of a fact, may not be used to prove that fact even if it is relevant for another purpose (s. 91(2)). However, s 91 does not apply to parenting proceedings by virtue of s 69ZT(1)(c) of the Family Law Act 1975 (Cth). Section 69ZT(2) provides that the Court may give such weight (if any) as it thinks fit to such evidence as is admitted as a consequence of s 91 of the Evidence Act 1995 (Cth) not applying because of s 69ZT(1). Accordingly, the decisions of New Zealand judges were tendered into evidence and, where relevant, can be accorded such weight as I consider appropriate. I adopt the findings of the New Zealand judge and give weight to the evidence, including expert evidence, from the New Zealand proceedings.

7. Second, by applying issue estoppel principles. The parties to the New Zealand parenting proceedings were the same as the parties now before me save that the stepfather was a witness in the mother’s case rather than a party to the proceedings. Findings made by the New Zealand judge were necessary for the determination of those proceedings. However, res judicata or issue estoppel is not binding in parenting cases.[7] In Newling & Mole (1987) FLC 91-856[8] Nygh J, with Barblett and Fogarty JJ discussed the principle in Rice & Asplund and said at 76,467:

   Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. There must, in other words, be an end to litigation.

   [7] Elmi & Munro (2019) FLC 93-912, [27].

   [8] [1987] FamCA 21, (1987) FLC 91-856, 11 Fam LR 974.

8. The Full Court in In the Marriage of Schorel [1990] FLC 92-144; considered the custody arrangements of four children of which the parentage was in question for three of them. At page 21 the Full Court, comprising Simpson, Fogarty and Purvis JJ said:

   ...Issue estoppel has at best a very limited application in family law proceedings, for reasons referred to in the above cases.  Public policy, upon which estoppel is based, does not support the use of that doctrine within this jurisdiction – at least in its jurisdiction in relation to the custody of children.  The Court has a clear obligation to concern itself with the welfare and interests of the child or children concerned and may not allow that duty to be circumscribed by what are basically technical rules of evidence.  Although the adults are the parties in custody in like proceedings, the real “party” is the child whose welfare is being considered.  If a child in such a case was separately represented it would be difficult to envisage that the separate representative would be estopped from raising an issue such as paternity.

9. At page 22:

   …Issue estoppel has a very limited application generally in family law, whether in relation to the narrower issue of paternity or in relation to other issues which may have previously been determined between the parties, as particularly the English cases referred to above amply demonstrate.  It is unnecessary for present purposes to consider the outward limits of this view, except perhaps to add that where a matter has been clearly and directly put in issue in contested family law proceedings it may not be open to a party in ordinary circumstances to continue to re-litigate that same issue in subsequent proceedings.

10. In B & J [2009] FamCAFC 103, the Full Court considered issue estoppel, where the appellant mother argued that the trial judge in a second set of proceedings impermissibly departed from the findings of fact made by a previous trial judge years earlier, and in respect of which those findings of fact provided to her Honour a basis for a conclusion that there was an unacceptable risk to the children of them spending unsupervised time with the father. May and Strickland JJ referred extensively to a judgment of Hale J (as her Ladyship then was) in Re B (Minors) (Care Proceedings: Evidence) [1997] 2 All ER 29 and particularly at 39 where her Honour said:

    It seems to me that the weight of Court of Appeal authorities against the existence of any strict rule of issue estoppel which is binding upon any of the parties in the children’s cases.  At the same time, the Court undoubtedly has a discretion as to how the enquiry before it is to be conducted.  This means that it may on occasions decline to allow a full hearing of the evidence on certain matters even if the strict rules of issue estoppel would not cover them.

    …Hence, if the applicant in one set of proceedings wishes to rely on findings made in previous proceedings in order to prove a case, the Court will have to consider how this should be done.  Frequently, although such findings are not necessarily accepted by the party concerned, that party would accept that a challenge to them in later proceedings will be futile.  The Court may then simply rely upon the findings made earlier.  Sometimes, the party concerned or some other party will wish to be made aware, not only of the findings themselves, but also the evidence upon which they were based.  It is then for the Court to decide whether or not to allow any issue of fact to be tried afresh.  There are no doubt many factors to be borne in mind, among them the following:

    (1)The court will wish to balance the underlying considerations of public policy, (a) that there is a public interest in an end to litigation—the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but (c) that the welfare of any child is unlikely to be served by relying upon determinations of facts which turn out to have been erroneous: and (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No 2) [1966] 2 All ER 536 at 573, [1967] 1 AC 853 at 947 ‘must be applied so as to work justice and not injustice’.

    (2)The court may well wish to consider the importance of the previous findings in the context of the current proceedings. If they are so important that they are bound to affect the outcome one way or another, the court may be more willing to consider a rehearing than if they are of lesser or peripheral significance.

    (3)Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone. The court will want to know: (a) whether the previous findings were the result of a full hearing in which the person concerned took part and the evidence was tested in the usual way: (b) if so, whether there is any ground upon which the accuracy of the previous finding could have been attacked at the time, and why therefore there was no appeal at the time; and (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings. 

    The third judge, Thackray J, gave separate reasons but did not disagree with the reasons of May and Strickland JJ. 

11. It is, as Riethmuller J observed in the recent case of Adler & Parrow [2024] FedCFamC1A 192:

    [….] If the appellant established an issue estoppel at common law, the Court is not bound by the issue estoppel when determining parenting cases (see Schorel & Schorel (1990) FLC 92-144; Adams & Peters [2009] FamCA 972; B & J [2009] FamCAFC 103), although it remains open to a trial judge to rely on the issue estoppel: see the detailed discussion by Hale J (as her Honour then was) in In re B (Case Proceedings Issue Estoppel) [1997] Fam 117 at 128. For example, in some cases there may be no purpose served by re-hearing the evidence and cross-examination on an issue in the subsequent proceedings, having regard to the evidence and reasons before the previous court and the considerable burden upon litigants of traversing an issue again (particularly those who have been victims of violence).

12. The decisions of the New Zealand judge are detailed, extensive and comprehensive as to the evidence upon which she relied and findings of fact. The matters of which the New Zealand judge was required to be satisfied, and was satisfied, are clearly articulated. The decisions are well reasoned and clear. The New Zealand judge made her decisions over a two-year period making her assessments qualitatively and quantitively impressive. The Mahoneys did not appeal any of the New Zealand judge’s decisions.

13. The third way in which the findings of the New Zealand judge can be adopted by me is through the statutory power to adopt earlier decisions and findings conferred by s 69ZX(3) of the Act. That section provides:

    The Court may, in child-related proceedings:

    (a)Receive into evidence the transcript of evidence in any other proceedings before:

    (i)        the Court; or;

    (ii)       another Court; or

    (iii)      a tribunal;

    and draw any conclusions of fact from that transcript that it thinks proper; and

    (b)Adopt any recommendation, finding, decision or judgment of any Court, person or body of a kind mentioned in any of the paragraphs (a)(i) to (iii).

14. Section 69ZX(3) was considered in passing by the Full Court in Bloomberg & Rod [2010] FamCAFC 112, in the context of an appeal from Murphy J who, at first instance, described the language of s 69ZX(3) as “permissive and unrestrained.” The Full Court, comprising May, Boland and Strickland JJ, approved of Murphy J’s reasoning and observed at [34]:

    His Honour considered the provision could be of particular utility in a case such as this where historical issues were mirrored in current issues before the Court. His Honour considered that the findings upon which he would place reliance were consistent with the evidence which was before him in his own assessment of the parties in their evidence.

15. There, Murphy J, and subsequently the Full Court, were considering parenting arrangements for two children aged 14 and 11 years whose parents had been litigating over the children for almost the whole of the 11 years or so since they separated. The proceedings included a five day trial before Stevenson J (2003), a five day contravention hearing before Dawe J (2003), further contravention proceedings before Nicholson C J (2003) and Bell J (2007) and a three day hearing before Carter J (2006) which resulted in consent orders. Murphy J described “[a]fter that long and tortuous history, the parties again conducted a four-day trial before me. The allegations and counter allegations are [it seemed to Murphy J], almost identical to those canvassed, in differing ways, in earlier trials. Certainly the same themes emerge.” It is a description which resonates strongly with these proceedings about X.

16. My assessment of current and future risk of physical or psychological harm (s60CC(2)(b)) and the benefit to X of having a meaningful relationship with both parents (s60CC(2)(a)) and the additional considerations are informed by earlier findings of the New Zealand judge on the same issues as well as the evidence received by me directly over 27 days of hearing in relation to what has occurred since the findings were made. The New Zealand judge’s decisions (and findings) contextualise the more recent behaviour of all parties in respect of which I heard evidence.

17. The proceedings before the New Zealand judge did not go well for the Mahoneys but at every turn the judge explained where the behaviour of the Mahoneys fell short of acceptable parenting, was inconsistent with X’s best interests and why the orders she made represented a safer and better outcome for X than the outcome for which the Mahoneys advocated.  The New Zealand judge’s findings in all her decisions have been signposts for behaviour that needed improvement and that the mother and stepfather could change if motivated to do so. The judge’s findings could not have been more accessible in practical terms. The findings were written out and published. The fact that the proceedings were made up of a number of hearings dealing with separate parenting issues from 2014 to 2017 provided the Mahoneys with the opportunity between hearings to demonstrate that they had understood and addressed areas of concern and criticism by the judge expressed in earlier hearings. Demonstrably, the Mahoneys did not take those opportunities and the fact that they didn’t is relevant to this case. The findings of the New Zealand judge form a comprehensive standard against which to gauge the extent to which the Mahoneys have, in the intervening years, acted constructively (if at all) to alter the behaviour which was identified by the judge as being injurious or potentially injurious to X and required that all face-to-face time and communication be supervised.

18. A further feature of the New Zealand judge’s findings is that they were made by the one judge over a two-year period, from 2015 to 2017. There is a longitudinal quality to the findings by which I mean that the mother and stepfather were in a position to consider negative findings made by the judge at one point in the proceedings and then take constructive action before the next court hearing to demonstrate they had heard, understood and acted to redress the judge’s concerns. Unfortunately, the mother and stepfather chose to double-down rather than change course.

19. In order for the Court to assess what (if anything) is now needed to protect X from physical or psychological harm from being exposed to abuse, neglect or family violence, within the meaning of s.60CC(2)(b), I will look at the evidence before the New Zealand judge and other previous judges in addition to the evidence of more recent matters from the 27 days of hearing before me.

20. Save where expressly indicated to the contrary, if I mention a finding of the New Zealand judge, I adopt the finding.

    THE LAW IN RELATION TO PARENTING

21. This case was commenced prior to the enactment of the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024. The legislative changes to s 60CC and the repeal of the presumption of equal shared parental responsibility do not apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of the commencement of the final hearing. References to legislation are to the legislation at the date of the commencement of the final hearing.

22. Pursuant to s 60CA of the Act, in deciding to make any parenting order in relation to the child, I must regard the child’s best interests as the paramount consideration.

23. Section 60B of the Act defines the objects of Part VII as to “ensure that the best interests of the children are met” by:

    ·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    These objects are the core values of the legislation.

24. The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:

    ·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    ·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    ·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    ·parents should agree about the future parenting of their children; and

    ·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60B(4) of the Act provides that an additional object is to give effect to the United Nations Convention on the Rights of the Child[9] (“the Convention”) to which Australia became a signatory on 22 August 1990 and which entered into force for Australia on 2 September 1990.  The four core principles of the Convention are:

   ·non-discrimination;

   ·devotion to the best interest of the child;

   ·the right to life, survival and the child’s full development — physically, spiritually, morally and socially; and

   ·respect for the views of the child - that children have a right to have their say in decisions which affect them and to have their opinions taken into account and have a right to participate fully in family, cultural and social life.

   [9] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

2. Reference to the Convention as an additional object under the Act when s 60B(4) was inserted under the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, some 21 years after Australia signed the Convention. The principles of the Convention are implemented as core values of our legislation rather than as provisions which create specific justiciable rights and responsibilities for individuals. The significance of the legislation being to give effect to the Convention, is that it provides a basis to interpret the Act within the context of international human rights principles (including the Convention) to the extent that is compatible with the express intention evinced in the legislation. However, an object does not give any legally enforceable rights to children. [10] New Zealand ratified the Convention on 6 April 1993.

   [10] Re: B & B: Family Law Reform Act (1997) FLC 92-755, 84,233.

3. Section 65D of the Act provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting orders as it thinks is proper.

4. In determining what is in a child’s best interests, the Court must have regard to primary considerations and additional considerations (section 60CC(2) and (3)) in light of the objects and principles in s 60B of the Act.

5. The primary considerations for the court are set out in s 60CC(2) and are described as follows:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. I am required to give greater weight to the need to the protect X from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.[11] The mother makes extensive allegations of family violence perpetrated by the father against herself in the period leading up to and immediately after X’s birth. This is discussed below.

   [11] Family Law Act 1975 (Cth) s 60CC(2)(b).

7. Additional considerations are set out in s 60CC(3) of the Act. I need only have regard to the additional considerations which are relevant. Section 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the Court thinks is relevant’. This ensures that the infinite variety of circumstances of individual children can be addressed.

8. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[12] Equal shared parental responsibility is not defined but relates to decision making about ‘major long-term issues’, which are defined in s 4 of the Act as follows:-

   …issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a)the child’s education (both current and future); and

   b)the child’s religious and cultural upbringing; and

   c)the child’s health; and

   d)the child’s name; and

   e)changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   [12] Family Law Act 1975 (Cth) s 61B.

9. The Act as it was at the commencement of final hearing provided that when making a parenting order, such as the orders sought in this case, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child. Relevantly, the presumption will be displaced if there are reasonable grounds to believe that a parent has engaged in abuse or family violence or if the Court is satisfied that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility. If the presumption is displaced, the Court must then consider parental responsibility at large and make an order that is in the child’s best interests. Family violence is expansively defined in the Act.

10. The implementation and mechanics of shared parental responsibility are conditioned by s 65DAC of the Act. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[13] The holders of shared parental responsibility are required to ‘consult the other parent in relation to the decision to be made about that issue’[14] and to ‘make a genuine effort to come to a joint decision about that issue’.[15]  These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared. It is therefore necessary to assess the relevant person’s ability to have timely and constructive discussions and to consult with one another.

    [13] Ibid s 65DAC(2).

    [14] Ibid s 65DAC(3)(a).

    [15] Ibid s 65DAC(3)(b).

11. If I order that parental responsibility be shared, I am required to consider whether X ought to spend equal, substantial and significant time with both parents. In so doing, the Court must consider, amongst other things:

    ·the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time with each of the parents;[16] and

    ·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind[17] (including the behaviour of a parent, such as their willingness and ability to facilitate and encourage a close, meaningful relationship between the child and the other parent and their attitude to the child and to the responsibilities of parenthood);[18] and

    ·the impact that an arrangement of that kind would have on the child;[19] and

    ·such other matters as the Court considers relevant.[20]

    FAMILY CONSTELLATION

    [16] Ibid s 65DAA(5)(b).

    [17] Ibid s 65DAA(5)(c).

    [18] Ibid s 65DAA(5) Note 1.

    [19] Ibid s 65DAA(5)(d).

    [20] Ibid s 65DAA(5)(e).

    Maternal Family

12. The mother met the stepfather in Aotearoa New Zealand (“NZ”) in 1994 when they were 18 and 22 years old respectively. The couple were married in 1995. They are both practicing Christians. They had three children, Ms E born in 1996 (now aged 28), Mr J born in 1998 (died in 2007) and Mr Y born in 1999 (now aged 24). All three children had traits of neurodiversity. This was especially the case with Mr Y who has autism and a disability and is now in professionally managed secure, independent accommodation in NZ.

13. It is the evidence of both the mother and stepfather that they separated for a short period in 1999 prior to the birth of their third child, Mr Y, the same year. A Report on the mother dated 2014 and annexed to the report of Ms EE, social worker (Exhibit F14) refers to a domestic violence complaint made by the mother against the stepfather in 1996 and that the stepfather had left their joint residence. The stepfather deposes to having had a vasectomy in or around late 1999. During the children’s youth, the stepfather deposed to working full-time as a professional. In the NZ proceedings, the mother claimed she worked in a carer role whose employment had involved picking children up from school, keeping houses clean, cooking and running children to various activities.[21]

    [21] Transcript February 2023, p. 80 line 37 to p.81 line 11.

14. In 2007, the Mahoneys’ second child, Mr J, died. A significant amount of evidence surrounding Mr J’s death was presented to the Court in New Zealand and some of it was reproduced in this Court. I take it into account.

15. The Mahoneys relinquished care of Mr Y (then 15 years old) to the Department of Child Youth & Family (now Oranga Tamariki) very shortly after X was removed from their care by an urgent order of the New Zealand judge, discussed below. Had they not relinquished care, the Department indicated that Mr Y would be removed. Neither Mr Y, nor X, have returned to the care of the Mahoneys.

16. The Mahoneys do not see Mr Y frequently or regularly. On 26 May 2023, I asked the stepfather when he had last seen Mr Y. He responded:[22]

    I didn’t see him until -- Immediately before the February hearing. Ever since then I’ve been having to focus on this case. And I would have wanted to see him, I actually had um, made it a priority because I realised it would reflect badly on me if I hadn’t seen him, but I just needed to prepare this case. I had so much work to do on it.

    [22] Court audio recording, May 2023.

17. The Mahoneys are estranged from their eldest child, Ms E. The stepfather’s evidence is that he, and likewise the mother, have not seen Ms E for some years. The Mahoneys describe their relationship with Ms E as “strained”, receiving updates about her only through other family members.[23] Ms E left home in 2014 when she was 18 years old, some seven years after Mr J died. The documents in the New Zealand proceedings also deal with Ms E.

    [23] Family Report of Ms DD, 10 June 2022, pg 12, [39].

18. X has had some contact with Ms E on the mother’s side but is very much aware of her. X reported to Dr BB that “[Ms E] doesn’t talk much...she is reserved...I guess she doesn’t know what she can say and what she can’t...I like seeing her because she is part of my family”.[24]

    [24] Single Expert Report of Dr BB, 30 November 2022 at [3.28]

19. Ms E did not give evidence in this trial although she did speak to the expert witnesses, Dr BB and the Family Consultant, Ms DD. Dr BB reported that:[25]

    [8.21] [Ms E] acknowledged her complex and currently estranged relationship with her parents. She would ultimately like a better relationship with them but feels they have not taken responsibility for what she and her siblings experienced (especially in the years following [Mr J’s] death). She said “you would like to think that when people are abusive they would say sorry, I have asked them to apologise but they always make excuses, they say it was in the past, that I am making it seem worse than it was or they give half-baked apologies...I have asked them for help...I have had to have a lot of counselling...I still need help”.

    [25] Single Expert Report of Dr BB, 30 November 2022, [8.21].

20. In relation to the mother’s relationship with her family of origin, the report of Dr C dated 13 June 2016, records that the mother, at that time, had a poor relationship with her parents and especially her father.

    [23][Ms Mahoney] indicated that she continues to have dysfunctional relationships with her parents. She commented that she does not have any contact with her father and has intermittent contact with her mother over the telephone. [Ms Mahoney] commented that her mother “still makes me feel unimportant.” She added that she is also not close to her sister either. Although she had a fraught relationship with her brother […] during childhood, she commented they are now closer.

21. Although, Dr BB conducted an interview with the maternal grandmother and recorded:

    [8.1][Ms FF] has ongoing a regular contact with [Ms Mahoney] and her other children and grandchildren. She described herself as being upset by the situation. Clearly, she had not expected it to continue to be as conflicted and difficult as it has become.

    […]

    [8.10] […] [Ms FF] was careful but said she had never found it 100% easy to deal with [Mr Mahoney].

22. The mother is not close to her family in New Zealand. This is consistent with the absence of evidence from the mother’s family in Town CC that they would assist the mother with arrangements for X to spend time with her if a visit were to be held in Town CC.

    Paternal Family

23. X lives with her father, paternal grandmother and paternal grandfather. The paternal grandfather was not on affidavit or called to give evidence in these proceedings.

24. X has two siblings on her father’s side. GG (aged five) is the son of the father and Ms HH and JJ (aged three) who is the father’s daughter with Ms S.  The father pays child support for both children.[26]

    [26] Financial Statement of Mr Dieter dated 20 January 2023.

25. X has little to no contact with Mr Y or JJ. The father has a co-parenting relationship with Ms HH, with GG spending 50/50 time in his care. The father has a poor relationship with Ms S and, at the moment, very little if any time with JJ. The father was subject to an Intervention Order for the protection of Ms S. The Mahoneys were in contact with Ms S, but she is not on affidavit. The father denied the allegations made by Ms S and agreed to the IVO on a without admissions basis for a period of 12 months. It has since expired.

    THE HEARING

    Representation

26. The father was represented by private counsel. The paternal grandmother estimated that the family has applied not less than $250,000 to the cost of legal representation for the father in New Zealand and Australia and travel, accommodation and other expenses necessary to facilitate X’s four trips to New Zealand each year.

27. The stepfather spoke for himself, and the mother save for a few instances when the mother asked to make a submission separately and in addition to the stepfather and I permitted her to do so. She did not cross-examine on her own behalf. The stepfather said he would cross examine on behalf of both of them.[27]

    [MR MAHONEY]: [….] I will be the one primarily cross-examining

    HER HONOUR: There’s not one primarily cross-examining, there is one or two

    [MR MAHONEY]:      I will be the cross-examiner

    HER HONOUR: [Ms Mahoney] will not have a right to examine independently but I would say that we do need to see that you turn to her and ask her if there’s anything she wants you to put before you conclude.

    MR MAHONEY: That would be good, ma’am.

    [27] Court audio recording (not transcribed), December 2022.

28. Accordingly, the following notation was made:

    AND IT IS NOTED THAT on behalf of the applicants cross examination will be conducted for both of them by the second named applicant [Mr Mahoney] who will refer to [Ms Mahoney] prior to the conclusion of his cross examination that there is nothing further she wants the witness to be cross examined about.

29. There being no intention for the mother to cross-examine the father, no s 102NA issues were raised by any party.

    Conduct of the hearing

30. This matter proceeded before me over 27 days. It was originally listed for 10 days which included an estimate of one and a half days for each party/witness and a day for each expert. However, given the mother’s propensity for non-responsive answers and interventions by the stepfather, the mother’s cross-examination progressed at a glacial pace. I determined that the mother’s cross-examination should exceed the time estimated so Counsel for the father and Independent Children’s Lawyer could cover the topics they said that they wished to cover.

31. The stepfather, too, was a difficult witness. He was longwinded and unresponsive at times and argumentative. When estimating the time needed for cross-examination of the father, the stepfather waxed and waned, at one point estimating five full days.  Ultimately in discussing the length of the case the stepfather observed “it will take as long as it takes.”

32. The matter was run in person in the Melbourne Registry for the first ten days of the proceedings. For the subsequent seventeen days, the respondent father and Independent Children’s Lawyer attended the Melbourne Registry, and I acceded to the applicant’s request to appear via Microsoft Teams from their home in New Zealand. The mother was in the witness box for a total of approximately 24 hours and 41 minutes over 8 days. I will comment on her demeanour later. The stepfather was in the witness box for approximately 26 hours and 46 minutes over 8 days. The father was in the witness box for approximately 15 hours and 10 minutes over 5 days. The paternal grandmother was in the witness box for approximately 2 hours and 37 minutes over 1 day.

33. At the commencement of the hearing, a Safety Plan was put in place for the mother and stepfather due to safety concerns expressed by the mother. The mother stated that the Safety Plan made her calmer and eased her concerns about the father yelling at her, which she says he did in the New Zealand proceedings.[28] The mother said that her physical health fluctuated during the hearing, specifically when the mother was in person at the Melbourne Registry and under cross-examination.

    [28] Transcript February 2023, p.70 line 8–15.

34. At various stages during the proceeding, the mother and stepfather expressed concern as to how the proceedings were being conducted, having regard to the mother’s mental and physical health, in particular, that she suffers from Post Traumatic Stress Disorder (“PTSD”). Ms Harris raised some concern about the time the mother was under cross-examination on day three and her mental health. I adjourned the Court at around 4.20pm that day. At the commencement of the third day of the mother’s cross-examination, an email was sent by the stepfather to the parties and the Court with an attachment from the report of the Australia Law Reform Commission dated 2010 about the admissibility of evidence relating to prior sexual history in sexual assault trials. The stepfather relied on this document in an objection that Ms Harris’ “lines of cross-examination relating to the [mother’s] prior experience with [Mr KK] are inadmissible under the basis of evidence relation to prior sexual experience”. The mother’s evidence about Mr KK is relevant to the current proceedings and my assessment of risk. The stepfather objected to a question put to the mother as to when she told the stepfather about the assaults by Mr KK. I overruled the objection. The mother said she told her husband about the sexual abuse when she commenced therapy but said she could not remember exactly when she commenced therapy. The mother repeated that she could not remember when she told the husband about the alleged sexual abuse.

35. On 9 February 2023, after a short morning adjournment, the mother advised she had vomited during the break and said that she may vomit in the witness box. She stated she needed “questions to be short and simple so I can understand and process them…no yelling and time to process”.[29] However, the mother also insisted that cross-examination continue. The next day, when it was suggested that she may have vomited up her prescription medication, I made it clear she could have a break to obtain medical attention if she felt that she needed to do so. The mother did not say that she wanted a break.

    [29] Court audio recording (not transcribed), February 2023.

36. On day four, when the mother was failing to give responsive answers, I said that she could have multiple breaks but that failing to give responses would not mean that cross examination would be cut short. I noted that, at that stage, it was already likely that the hearing would need to go for longer than 10 days. I then observed the mother to appear to collect her thoughts, to draw herself up in her seat in the witness box and to say in an officious tone of voice and an air of impatience “well can we start then?” or words to that effect.[30] The mother then answered questions directly. My impression is that, once the mother realised that cross-examination would continue for as long as necessary, she became compliant. It follows that I have some reservation as to the genuineness of the mother’s alleged inability to process questions and respond.

    [30] Court audio recording (not transcribed), February 2023.

1. I set out here the gist of what should be communicated to X. It can be treated as a script or as indicative. However it is communicated, the Family Consultant must not say anything to X that is not true. I am thinking in particular of the evidence from Dr BB that the mother deserves to have noted her belief that she was raped - not necessarily communicated to X in those words, but that X should know that the father and mother have different versions of the circumstances of her conception. I require that it be stated unambiguously that the Court does not accept what the mother and stepfather say about the mother’s relationship with the father and that the two judges that have heard all of the evidence (myself and the first New Zealand judge) are entirely satisfied that what the father says is true.

2. The content of the discussion is to be as follows:

   Your mum and [Mr Mahoney] struggled to look after you and their other children. And so, the Court said you were to live with your dad and grandma in Australia. The Court wanted you to have a relationship with your mum, stepdad and dad in Australia. But [Ms Mahoney], [Mr Mahoney], [Mr Dieter] and [Ms Q] disagreed as to how that should happen, and the Judge has had to make some decisions for you and thinking about what is important for you to know about your family now. When you get older you can ask questions for yourself. At the moment, the Judge needs to make decision as to what you should know. The Judge has decided that as you are growing up the best way. Therefore, you will continue to live with your father and the Court understands that you will also be living with your paternal grandmother.

   The Judge has determined that your mum and stepdad hold views and say things about your father that could put you at risk. Your mum has told the Court these views and the Court has found that they are not true. The Judge has determined that your mum is not able to regulate her beliefs and emotions in a way that can keep you safe without your time with them being carefully supervised. The Judge knows that all of your parents love you and this is the best way for you to have a meaningful relationship with your mum and stepdad that keeps everyone safe.

   VEXATIOUS LITIGANT APPLICATION

3. The father seeks an order for the Mahoneys’ Initiating Application filed on 2 May 2020 and amended on 25 June 2022 and the contravention application filed 14 June 2020 to be declared vexatious proceedings within the meaning of s 102QB of the Act. The Independent Children’s Lawyer seeks orders injuncting the mother and stepfather from bringing an application with respect to X, for a period of 4 years, without first obtaining leave from the Court to do so.

4. The Mahoneys, in their proposed minute of order (Exhibit M22) include at paragraph six:

   6.The Applicants shall require the leave of the Court for any application with respect to the parenting of the child [X].

5. As the matter commenced prior to the amendments coming into effect, I will refer to legislation prior to the amendments, although note that there has been no legislative change to s 102QB of the Act with respect to vexatious proceedings. Section 102QB of the Act provides that the section applies if a Court exercising jurisdiction in proceedings under the Act is satisfied:[251]

   (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.

   [251] Family Law Act 1975 (Cth) s102QB(1).

6. In determining whether to declare the proceedings vexatious, the Court must have regard to the following:[252]

   (a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

   (b)orders made by any Australian court or tribunal; and

   (c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

   including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.[253]

   [252] Ibid s102QB(6).

   [253] Ibid s102QB(2).

7. The principles to be applied when determining whether proceedings are vexatious are well established.  In Marsden & Winch (2013) FLC 93-560 the Full Court (at [81]) referred to Roden J’s definition of vexatious proceedings in Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481 as follows:

   (1)Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

   (2)They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

   (3)They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

8. I am satisfied that the Mahoneys are overly litigious and overwhelmingly unsuccessful.

   Previous proceedings instituted by the Applicants and consideration of previous orders

9. There are 2 previous vexatious proceeding orders:

   ·An Application in a Case filed by the stepfather on 14 June 2020, vexatious proceeding order made by myself on 14 August 2020: Mahoney & Dieter [2020] FamCA 667.

   ·An Application in a Case filed by the Applicants on 5 July 2021, vexatious proceeding order made by Macmillan J on 8 October 2021: Mahoney & Dieter [2021] FedCFamC1F 111.

10. In Mahoney & Dieter [2020] FamCA 667, I held that:

    [16]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 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….

    [17]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.

    […]

    [21]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.”

    […]

    [41]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.

    [42]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.

    [43]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.

    [50] 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.

    [51]I am satisfied that the stepfather and the mother are each individually responsible for the vexatious proceeding.

    [52]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.

11. Although her Honour did not make a further vexatious proceedings order, in Mahoney & Dieter (No 2) [2019] FamCA 633, Justice Hartnett recorded that:

    [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.

    Overall conduct of the applicants

12. Mr Mahoney repeated, on no less than two occasions, that in his view “final orders are not final” or words to that effect.[254] I note above, and reproduce here, that he said:[255]

    Well, Ma’am, these submissions are not just with you, for respect. They’re included on the transcript, so they might be used by a later court, so I would like to make sure I at least get them down.

    [254] Transcript November 2023, p.26 line 20; Transcript November 2023, p.89 line 41;

    [255] Transcript November 2023, p.38 lines 43–45.

13. The stepfather, at various points during the proceedings, expressed outrage towards the Australian court system, the solicitors, Counsel, and myself. Such comments made about the Australian Family Law system are as follows:

    ·In his evidence to this Court, the stepfather claims that “Australia is not my sovereign country” and that “New Zealand is my sovereign country. I will abide by orders there”. The stepfather further stated, “the focus of my hatred shifted from [Mr Dieter] to the Australian Court system in general…around about 2018 when the Australian Court system started failing [the mother and stepfather] so dismally”.

    ·The stepfather advised he was in a financially poor position due to having to pay costs for Dr BB’s report. It was suggested that the Mahoneys wanted to appoint a psychologist in New Zealand and did not want anyone from the Australian family court involved in the process. In response, the stepfather stated:[256]

    [256] Court audio recording (not transcribed) May 2023.

    MS HARRIS: You didn’t want anyone from Family Court of Australia did you?

    [MR MAHONEY]: No I didn’t. I don’t work well with Australians.

    MS HARRIS: Sorry?

    [MR MAHONEY]: I don’t- I have difficulties with Australians. They rub me the wrong way.

    MS HARRIS: Well the problem is, your stepdaughter is part Australian. Have you thought about that?

    [MR MAHONEY]: She is a New Zealander. She was born in New Zealand. She is a Kiwi through and through.

    MS HARRIS: So her time in Australia for the last 7 years is irrelevant is that what you’re telling the Court?

    [MR MAHONEY]: It’s a grand adventure that’s enriched her life and given her [inaudible] opportunities that we wouldn’t have provided in New Zealand and made her a richer person from having the benefit of knowing two countries. Just because I don’t particularly see the merits in Australia doesn’t mean that she wouldn’t. Different people have different perspectives.

    ·When asked to comment on his stress levels, the stepfather stated that he experienced stress associated with his professional high stakes job and is working “through things like anger directed at Australia system and Australians in general and how I’m being treated. Angry at the Court and way courts have been treating me. I’ve been distrustful and I’ve felt clobbered from all sides and I’m trying to do the right thing”.

    ·Mr Mahoney said: “…conduct of the Australians who wouldn’t regulate their own legal professionals and they were withholding documents about the child’s medical care that started all of this. So here we have the Australian’s going ‘We are not going to look into this’ and Kiwis, monks that we are, do it properly. That’s why I asked for a New Zealand -um- psychologist because I know that in Australia it’s just a once over lightly all the time. That what you got with [Ms DD]. That’s why I don’t rely on [Ms DD’s] things because it is a once over lightly. We needed a Kiwi to actually look at them because WE CARE! We care about doing the job properly. If you want a job done, you ask a Kiwi to do it. Sorry I know it’s unpalpable in the Australian Court but that’s how I feel.”

    ·The stepfather states the New Zealand system is “far superior” and that the Mahoneys were trying to get their daughter back to a jurisdiction that operated in a family-oriented way. The stepfather conceded that the first New Zealand judge was “right” to relocate the child stating “she got parenting problems right, difficulties in care right, got parties accounts wrong. End of day she was right to relocate. I take no issue with that. what I’m upset about is intervening 5-year period where we have had succession of tactical games. Once we get someone who is qualified, who does rolls Royce job you ignore them…”

    ·When questioned as to the stepfather’s lack of objectivity in all proceedings and his understanding of expert evidence forming only part of the evidence, the stepfather responded “as a [professional] I know that the way family court proceedings are conducted in New Zealand is considerably less adversarial and is considerably more focused on best interests of the child and that had we been in New Zealand we would have spent 12 days zeroing in on the elements that Dr BB has put in her report rather than grilling me about matters about [inaudible] between you and [Ms O] with the [professional standards body] and matters in NZ costs because they have nothing to do with the best interests of the child. Yes you are scoring some cheap hits. Obviously, you are trained in this but its not focusing on child’s harm and the child’s suffering. And when you have senior expert who says “this is a child suffering there are serious problems the parents need to get together and solve” it’s really frustrating when one party does not take a child centred approach but focuses up ‘whataboutisms.’ Upon damming the other party upon just attacking credibility and your entitled to do that. That’s the adversarial way and it may be the way you do law in Australia but it is not the way I practised family law. It is not the way we have tried to approach this case. So, yeah, that’s why I am relying very heavily on [Dr BB]…”

    ·When asked to consider the mother’s ability to give evidence, the stepfather, in his cross-examination, suggested that Counsel did not act appropriately having regard to the mother’s mental and physical health. He stated the mother was impaired by Counsel’s questions and had hoped the “Australia courts would have protocol when dealing with stressed victims”. An observation was made as to the mother’s behaviour in the witness box, at one stage, where the mother was observed to fluctuate quickly from apparent distress to a business-like nature. The stepfather responded that “torture will have that effect on people”. The stepfather then stated that “you people are savages” suggesting that the “New Zealand approach is enlightened as opposed to backwards approach about Australian courts” as to the treatment of the mother. As already stated, the Mahoneys are extremely familiar with giving evidence and could have made suggestions or applications to the Court to lessen the stress to the mother. They did not do so.

14. In email correspondence sent by the Mahoneys on 11 March 2023 (Exhibit F27), the applicants suggested the paternal grandmother, copying in the solicitors for the father, the Independent Children’s Lawyer and Counsel, to “get an Australian family lawyer (a real one, not an adversarial dinosaur) to set out the same ideas in a more formalised way we would be amenable to that. What is important is that X be placed on a plane at the start of the […] holidays. We will muddle through from there.”[257]

    [257] Exhibit F27.

    Was the contravention application filed 14 June 2020 a vexatious proceeding?

15. The contravention application filed on behalf of the applicants on 4 February 2021 was consolidated with the matters heard in these sittings. It was withdrawn by the Mahoneys on 17 November 2023 as they could not comply with the security for costs order made by McMillian J on 8 October 2021. This was after several days of evidence and time wasted on issues relevant to the contraventions.

16. While the Contravention application was withdrawn during these proceedings, the father is entitled to respond and has expended funds doing so.

17. As indicated, the (second) Contravention application, filed on 4 February 2021, was consolidated with these proceedings by way of order on 17 November 2023. The alleged contraventions spanned from 2020 until 2022, including alleged contraventions made previously in the first contravention application, notwithstanding that had been dismissed and were the subject of a security of costs order. Under cross-examination of the mother, her understanding was that there was an onus on the father to seek a variation of the orders due to the COVID-19 pandemic, to ensure make up time occur between herself and X. The mother’s evidence to this Court in relation to the first alleged breach, is that it “was not his fault but it was still a breach”.[258]

    [258] Court audio recording (not transcribed), February 2023.

18. When the mother was queried about mandatory quarantine periods required and the impact it would have on X given her vulnerabilities, the mother stated X would have enjoyed spending time with the paternal grandmother however would be distressed about not seeing the Mahoneys.

19. When an alternative arrangement for spend time during the COVID-19 pandemic was put to the mother, which involved the Mahoneys traveling to Australia to spend time with X and them being quarantined in Australia instead of X in New Zealand, the mother’s evidence to this Court was that they could not afford the travel costs due to costs spent in these proceedings. As discussed above, the application sought a “remedy” for the hours of missed contact that the applicants alleged were in contravention of the orders in place at the time. The respondents argue that the time was missed due to COVID-19 travel restrictions.

20. The application had been stood down subject to meeting the terms of the security for costs order. These terms were not complied with, and the application was finally withdrawn. The father made an application for the second contravention application to be found to be vexatious.

21. I am satisfied that the Mahoneys were vexatious in the institution of the above proceedings.

    Was the initiating application filed 2 May 2020 (as amended) a vexatious proceeding?

1. The stepfather’s ability to justify non-compliance with orders made in Australia does not auger well for a cessation of proceedings. I am not satisfied that these proceedings have been vexatious in the necessary sense. However, they have been conducted by the stepfather in a way that has been very costly to the other parties. For instance, their application changed a number of times, and finally they handed up a minute of order in which they conceded most issues. However, in final addresses, the mother interrupted the father and said that she sought holiday access with X. Given the stepfather’s previously stated view that any amendment to an application requires leave and a formal amended application to be filed (see [287] above), I don’t regard the mother as having made an application in her own right for an order in variance with the minute of order that they both sought.

   Conclusion on vexatious proceedings

2. I am satisfied that the Mahoneys have instituted proceedings on the occasions referred to above and that those proceedings have been vexatious in so far as they have served no useful purpose and have been doomed to fail.

3. In my view, it is appropriate to invoke the requirement under s102QE prohibiting the mother and the stepfather from instituting any proceedings in relation to X under this Act in a Court having jurisdiction under the Act without leave of the Court. The effect of this order is that, if either the mother or the stepfather wish to make any application they must file an application to the Court for leave to institute proceedings and an affidavit that meets the requirements prescribed by s102QE(3).

   CONCLUSION

4. I have endeavoured to set out evidence which was relevant to the issues ultimately decided as well as to the ones ventilated by the parties during the hearing. I have revised carefully. If I have not mentioned a matter, it does not mean I have not considered it. I am satisfied that the ultimate result is consistent with X’s best interests for the reasons set out above.

   COSTS

5. Any party who wishes to apply for costs may do so in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Any application for costs should be accompanied by an estimate of costs drawn in accordance with the Schedule 3 Scale, without prejudice to being able to claim any other rate.

I certify that the preceding six hundred and twenty-one (621) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:28 November 2024