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–…
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- AGLC
- Mahoney & Dieter (No 4) [2024] FedCFamC1F 813
- Case
- [2024] FedCFamC1F 813
- Decision Date
CaseChat Overview and Summary
The court found that the mother's allegations of rape were unsubstantiated and that her unreliability as a witness outweighed any potential benefit of expanding her relationship with the child. Given the child's diagnoses of Autism Spectrum Disorder (ASD) and anxiety, the court deemed it necessary to supervise all contact with the mother and stepfather to prevent any potential harm. The court also considered the history of litigation by the mother and stepfather, finding them to be overly litigious and unsuccessful. As a result, the court imposed a vexatious proceedings order, prohibiting the mother and stepfather from initiating any further proceedings without the court's leave. Additionally, the court granted the father sole parental responsibility, with limited and supervised contact for the mother and stepfather, while ensuring the father facilitated the child's access to her school records and medical information.
The court's decision to discharge all existing parenting orders, grant sole parental responsibility to the father, and impose stringent supervision and communication restrictions reflected a careful balancing of the child's best interests against the history of conflict and litigation. The orders also included provisions for the child's name change, passport application, and the supervision of any contact with the mother and stepfather.
Orders
Orders of the court
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 Australian Passports 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 3rd Saturday and 3rd 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 1st 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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I am satisfied that the Mahoneys are overly litigious and overwhelmingly unsuccessful.Previous proceedings instituted by the Applicants and consideration of previous orders 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. 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.