Marsden & Winch
[2012] FamCA 557
FAMILY COURT OF AUSTRALIA
| MARSDEN & WINCH | [2012] FamCA 557 |
| FAMILY LAW – CHILDREN – where an order for no time had been made – where the father had obtained a further forensic assessment in respect of his paraphilia and involved himself in further treatment consistent with that assessment – where there has been extensive litigation relating to the child since 2004 – where over the course of the litigation the mother has suffered significant issues with her mental health - where the circumstances had not significantly changed to lead to a different outcome – where a different outcome was not in the child’s best interests FAMILY LAW – PRACTICE AND PROCEDURE – vexatious litigant - whether orders should be made under s 118 and s 114(3) FLA to limit further litigation in respect of the child – where current proceedings were found to be vexatious and orders limiting further litigation were made |
| Family Law Act 1975 (Cth) |
| Attorney General (NSW)v Wentworth (1988) 14 NSWLR 481 Rice & Asplund [1979] FLC 90-725 |
| APPLICANT: | Mr Marsden |
| RESPONDENT: | Ms Winch |
| FILE NUMBER: | CAC | 373 | of | 2008 |
| DATE DELIVERED: | 18 July 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 2 – 3 April 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Ms Godtschalk |
| SOLICITOR FOR THE RESPONDENT: | Women’s Legal Resource Centre |
Orders
The mother’s application for summary dismissal of father’s Application filed on 8 July 2010 be dismissed.
The father’s Application filed on 8 July 2010 be dismissed.
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child S Marsden (“S”) born … March 2002.
The child live with her mother.
The child not spend time with her father.
The father may send to the child written communication in the form of letters or e-mails.
7.1.To enable this communication to occur the mother will provide and continue to provide to the father at all times a current address, which may be a PO Box, and current email address.
7.2.The mother may read any such communications before giving them to the child.
7.3.If the mother believes that the communications are intended more as communication with her rather than the child, or that the communications are otherwise inappropriate for the child to read, the mother may decline to give the communications to the child.
The father will provide and continue to provide to the mother at all times a current address at which he can receive communications from the mother about the child.
The mother will provide to the father written reports at not less than six monthly intervals about the child’s progress and about any major events which occur in the child’s life, including but not limited to, school reports, photographs and sporting achievements.
The mother will also communicate with the father in circumstances where the child is seriously ill or requires hospitalisation.
The father may send appropriate gifts to the child on her birthday and for Christmas and the mother will pass on such gifts to the child.
The father and his servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia. It is requested that the Australian Federal Police give effect to this order by placing the child’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list until the court orders its removal.
The child be permitted to travel internationally with her mother or with the mother’s written authorisation.
Pursuant to s 65DA(2) and s 62B, the particulars of 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 these particulars are included in these orders.
Pursuant to s 118(1)(c) Family Law Act 1975 (Cth) or alternatively Rule 11.04(1) Family Law Rules 2004 (Cth), the father shall not institute any further proceedings under the Family Law Act for parenting orders or any other orders in relation to the child without leave of the Family Court of Australia.
Pursuant to s 114(3) Family Law Act, subject to any further order of the Court, the father shall be restrained from serving upon the mother any application for leave to institute any further proceedings under the Family Law Act for parenting orders and/or any other orders in relation to the child.
Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the child (and in particular, any application for leave by the father pursuant to order 15 or for permission to serve any such application upon the mother pursuant to order 16) and that until further order that Judge be Justice Watts, if he is reasonably available.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsden & Winch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CAC 373 of 2008
| Mr Marsden |
Applicant
And
| Ms Winch |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Since 2004 there has been litigation about what time, if any, the child S Marsden (“the child”) born in March 2002, should spend with her father. The father suffers from paraphilia. The father’s previous sexually inappropriate behaviour arose from problematic attachments and his ability to be appropriately intimate.
In 2006 Faulks DCJ, amongst other orders, made orders that the child spend no time with nor have any direct contact with the father. The father appealed that decision, and the Full Court (“the first Full Court”), dismissed that appeal in 2007. The father’s application to the High Court for special leave was refused.
In 2008, the father filed a new application. Deputy Chief Justice Faulks dismissed the father’s application. His Honour did so based upon his application of the principles discussed in Rice & Asplund [1979] FLC 90-725 and the cases that followed it. The father appealed again, and in 2009 the Full Court (“the second Full Court”) allowed the appeal.
The matter came before me for retrial, initially in September 2009. The father filed an affidavit annexing his treating psychologist’s report (a fundamental issue in arguments before the second Full Court). The hearing was finalised in February 2010. I decided the treatment the father had received with his treating psychologist was not adequate. Further assessment and another course of therapy had been recommended. I dismissed the father’s application, however I noted that the father may be able to approach the court again once he had successfully completed treatment. I indicated the mother’s mental health and her ability to cope with an order that the child spend time with her father may need to be further considered at any new hearing.
The matter came before me again in April 2011. The father had undergone further forensic psychological assessment, but the expert report he provided recommended he undertake further treatment. The father had not undertaken that further treatment. I concluded the father’s application could not be progressed on the evidence available at that point. The mother sought a summary dismissal of the father’s application. I ordered the matter be stood over until the father filed expert reports indicating he had completed his treatment.
APPLICATIONS
The father’s application is set out in his application filed 8 July 2010. The orders the mother seeks are set out in her minutes of orders filed 19 March 2012. In addition, the mother sought an order relating to the institution of further proceedings by the father relying on s 118(1)(c) Family Law Act 1975 (Cth) (“FLA”) and a consequential order in respect of service of any application for leave on the mother (pursuant to s 114 FLA).
DOCUMENTS RELIED UPON
The applicant father relies on the following:
7.1.Initiating Application 8.07.2010
7.2.Applicant’s affidavit filed 16.12.2011 annexing:
7.2.1.Updated report from Mr V dated 30.11.11
7.2.2.Relapse Prevention Plan from Mr V dated 12.12.11
7.2.3.Updated report from Dr Z dated 8.12.11
7.2.4.Addendum to the updated report from Dr Z dated 14.12.11
7.3.Applicant’s affidavit 27.06.2011
7.4.Applicant’s affidavit sworn 7.7.2010 (which incorporates and relies upon his affidavit filed 1.9.2009)
The respondent mother relies on the following:
8.1.Minute of Orders sought 19.03.2012
8.2.Respondent’s affidavit sworn 30.03.2012 and filed 2.4.2012 annexing:
8.2.1.Report of Dr T dated 5.2.2012
8.3.Respondent’s affidavit filed 17.02.2012
8.4.Affidavit of Ms G filed 17.02.2012
The report of Family Consultant Ms H dated 28.02.2012 was also in evidence. The report writer was not required for cross examination.
MY PRIOR ORDERS AND REASONS
On 26 February 2010 I dismissed a previous application made by the father where he sought a new hearing for face to face time with the child. At that time I found that the significant change asserted by the father, being that he had obtained appropriate treatment for paraphilia, had not been made out by him. I made it clear to the parties in this hearing that I would be treating as read in this hearing the background facts and the reasons that I gave in my Reasons for Judgment delivered on 26 February 2010.
In addition, by way of dealing on an interim basis with the mother’s application for summary dismissal, I provided reasons for not finalising that application in Reasons for Judgment dated 18 April 2011. Again, I made it clear to the parties that I would take as read in this hearing the ex tempore Reasons for Judgment that I gave on 18 April 2011.
SHORT HISTORY
The father was born in 1954 and is now aged 58.
The mother was born in 1962 and is now aged 50.
The parties married on in 1984.
The parties’ child S was born in March 2002 and is now aged 10.
The parties separated on 6 June 2003.
CREDIT
Mother and Father
The mother was palpably apprehensive when entering the witness box knowing that she was about to be cross examined by the father. At times during her cross examination, in order to minimise her distress, I attempted to have the father direct questions through me. For some of the time there was direct exchange between the parties. Notwithstanding her clear emotional distress, I formed the view that the mother honestly responded to the father’s questions.
The only significant issue of credit that arose during the hearing of the current application related to whether or not the father was accurately remembering the extent of his problems prior to the death of his mother in 1996. Where there is difference in recollection between the father and the mother, I accept the mother’s version. The central issue where the parties are apart relates to what the father told Ms K at their first interview on 3 April 1998. The mother’s recollection is verified by Ms K’s contemporaneous note. I also accept the mother is accurately recording specific observations that she made of the father at times during their relationship.
The only other significant matter going to credit is the father’s continuing protestation that the Deputy Chief Justice and the Full Court both incorrectly found that he masturbated in public outside a public swimming pool in the ACT in 2006. I accept the findings that have been made against the father as I have recorded them at paragraph 60 of my Reasons dated 26 February 2010.
The experts
The mother did not challenge the credibility of either of the father’s experts, Dr Z and Mr V
The father asked questions of both the mother’s experts in relation to their professional qualifications. I find that they both have appropriate expertise to express the opinions that they have.
Father’s witnesses
The father has filed unchallenged evidence from his close friend Mr F (annexure G-1 to the father’s affidavit filed 8 July 2010). Mr F was not required for cross examination. I accept what Mr F says about his impressions and opinions in relation to the strengths in the father’s character. I accept that Mr F believes that the father’s deviant behaviour is now in the past and that he demonstrates that belief by allowing the father to regularly attend his home and play with his children. I accept the father has been adopted by Mr F’s family as an uncle to those children. I also accept that Mr F is of the opinion that it would be “preposterous” and demonstrate “foolishness” if the child was not allowed to benefit from contact with her father.
Whilst it is clear the father has told Mr F about his past “sexual deviancy”, the weight that I can place on Mr F’s views about the risk the father poses, is not weighty when compared with the professional opinions expressed by Dr Z and Mr V.
RICE & ASPLUND
The mother’s adjourned application for summary dismissal
The mother continues to press an argument that the father’s application should be dismissed on the basis that there has been no significant or substantial change in circumstances since the Deputy Chief Justice made orders in 2006.
In my Reasons dated 26 February 2010, I quoted (at paragraph 9) paragraphs 57 and 58 from the judgment of the second Full Court in this matter where the Full Court formulated the question in a Rice & Asplund hearing in the following way:
57. In Miller & Harrington (supra) the Court posed the question:
105.Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
58.That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
In my judgment of 26 February 2010, I concluded that there had not at that time been any significant change in circumstances. In order for there to have been a significant change in circumstances, I concluded, accepting the evidence of Dr Y, that the father needed to demonstrate that he had received appropriate treatment for paraphilia. That in turn required firstly a forensic assessment and the preparation of a forensic report and secondly, for the formulation of a treatment plan if that was indicated by the forensic assessment.
I concluded that given the state of the evidence at that time, it was not in the child’s best interest for the matter to continue. The order I made on 26 February 2010 was to dismiss the father’s application filed 1 September 2009. I said however that there may be, in the future, an ability for the father to approach the court again in circumstances where he claims that he has successfully completed what Professor Y had indicated that he should do. In the event the father did that, I indicated consideration may again be given as to whether the test in Rice & Asplund had been met. I flagged at that time that the mother’s mental health might again play a part in that assessment.
The father filed a new application on 8 July 2010. In support of that application, the father offered new evidence by way of a report from Dr Z. Dr Z’s report of 6 July 2010 recommended the father undertake further treatment. The mother sought summary dismissal of the father’s new application. On 18 April 2011 the mother’s application for summary dismissal on Rice & Asplund grounds was stood over to be further considered once the father had a further opportunity to file further evidence from his treating clinician going to the issue as to whether or not the father had completed the treatment recommended by Dr Z in the report of 6 July 2010. On 16 December 2011, the father filed an affidavit annexing an updated report and a relapse prevention plan from Mr V and an updated report and an addendum to the updated report from Dr Z.
On the basis of the evidence now filed by the father, I conclude (if that was only evidence which was looked at) that taken at its highest, there would be a significant change in the father’s circumstances (relating to his diagnosis and treatment) that would warrant a reopening of the case. Accordingly, the mother’s application that the father’s application filed on 8 July 2010 be summarily dismissed will be dismissed.
Should the Rice & Asplund issue be dealt with as a threshold issue at the final hearing?
I have indicated that I did not intend at the final hearing to deal with the Rice & Asplund argument as a preliminary threshold issue but rather as an issue to be determined once I had received all the evidence. I still need to determine the question of whether or not the father on all the evidence is able to satisfy the Rice & Asplund test.
DETAILED CHRONOLOGY
The father was born in 1954 and is currently aged 57 years.
The mother was born in1962 and is currently aged 50 years.
The parties married and commenced cohabitation in 1984.
The parties lived in the United States of America (‘USA’) for ten years. In 1994, they returned to live on the Central Coast of New South Wales.
In 1997, the parties relocated to north Queensland.
In February 2000 and March 2000, the father was convicted for wilful and obscene exposure.
Around January 2001 – January 2002, the father, who was visiting the USA on a number of occasions, became romantically interested in a young American school girl named “Catherine”. “Catherine” was 13 or 14 years old at the time. The father stole and kept “Catherine’s” underwear and carried a photo of “Catherine” in his wallet.
The child S was born in March 2002 and is now aged 10.
In June 2002, the father was convicted of indecent behaviour (not related to “Catherine”).
The parties separated on 6 June 2003.
In 2003, the mother and the child relocated to Canberra. Much later in the year, the father also relocated to Canberra.
In December 2003, the mother commenced proceedings seeking an order that any contact between the father and the child be supervised.
In 2004, the father had four supervised visits with the child at M Family Centre. The mother alleges he did not comply with rules imposed by the supervisor stating the parties were to arrive and depart at different times so as to not cross paths.
On 3 May 2004, the contact orders were suspended.
In May 2005, Dr W prepared a report for the initial parenting proceedings. Dr W recommended supervised contact be resumed.
In September 2005, interim orders were made for the father to have supervised contact with the child. M Family Centre was unable to facilitate this until November 2005.
In November 2005, the father resumed supervised visits with the child at M Family Centre.
In January 2006, the father was observed near a public swimming pool in a campervan. The door was one foot ajar. The campervan was up against the chain-link fence of the public swimming pool where the father was likely to be able to observe scantly clad athletic young women. The second Full Court confirmed the trial judge’s finding that the father was masturbating in his campervan at the swimming pool.
On 4 August 2006, Faulks DCJ heard the initial parenting proceedings (“the first application”). He ordered the child live with her mother and have no direct contact with her father.
In May 2007, M Family Centre suspended the contact visits. A contact visit on 12 May 2007 was the last occasion that the child spent face to face time with her father.
On 21 November 2007, the father appealed the orders made by Faulks DCJ. The first Full Court dismissed that appeal.
The father sought special leave to appeal to the High Court. That leave was refused.
On 28 July 2008, the father filed a new application (“the second application”) seeking contact with the child. He sought contact to be supervised at first, but eventually on an unsupervised basis on alternate weekends.
On 8 August 2008, Faulks DCJ dismissed the father’s second application based upon Rice & Asplund principles.
The father appealed the dismissal of his second application. On 26 August 2009, the second Full Court allowed that appeal.
The matter came before me on the 14 September 2009. The final stage of the hearing took place on 4 and 5 February 2010.
On 26 February 2010, I dismissed the father’s second application to spend time with the child in circumstances discussed above.
The father filed a new application on 8 July 2010.
On the 18 April 2011, I made orders that the father’s new application be stood over until such time as the father has filed reports from Dr S indicating his treatment was complete.
Around July 2011, the mother was prescribed Lovan and Valium for her acute anxiety.
On 3 November 2011 I made an order for a report from a Family Consultant in the following terms:
“Pursuant to s 62G Family Law Act, a family consultant prepare a report following an interview with the child, [S Marsden] born … March 2002. The interview is to be with [the child] alone and the family consultant is not to interview either of the parents for this report. The family consultant is asked to generally find out about [the child’s] current views and attitudes relating to her father. The family consultant is asked only to read my judgments of 26 February 2010 and 18 April 2011.”
On 30 November 2011, Mr V prepared his updated report.
On 8 December 2011, Dr Z prepared her updated report.
On 14 December 2011, Dr Z provided an addendum to her updated report, advising on the father’s “Relapse Prevention Plan.”
On 14 February 2012, the Family Consultant Ms H provided the family report which I had ordered.
I have not set out the history of all the procedural events in the litigation.
MAJOR ISSUES
The father’s health and risk of re-offending
The mother has invited me to find that the father is an unacceptable risk to the child.
The father’s treating psychologist Mr V provided an updated report, and a relapse prevention plan.
Mr V referred to the father’s past rationalisation and justification of his behaviours. He stated the father “now actively challenges these beliefs… and has repeatedly demonstrated more appropriate thinking strategies to challenge any new distorted thoughts, should they arise.”
Mr V stated that the father “actively understood each step of the offence cycle and denied entering into any of the thoughts or behaviours that have precipitated his previous offences.” Mr V opined “this gives me some confidence that he has an adequate grasp of the relapse prevention plan.”
Mr V notes that the father is now in an age appropriate relationship with a Filipino woman. This relationship has lasted six months. Dr Z commented that while this is a positive step, “this relationship is relatively new [and] his partner lives overseas, which by necessity has to compromise the intimacy of the relationship.”
The father has (as recommended by Prof Y):
72.1.obtained a forensic assessment, and commenced a treatment plan (including ‘schema’ focussed therapy) aiming to reduce abhorrent sexual feelings and attractions and establish socially acceptable feelings and attractions. He has also commenced his relapse prevention plan.
72.2.Participated in the treatment recommended.
Is father an unacceptable risk?
In her initial report, Dr Z assessed the father as having a moderate to high risk of re-offending. Having reviewed the psychological treatment the father has undergone with Mr V, Dr Z has reassessed the father’s risk of re-offending.
Dr Z’s report identifies two types of risk factors; static and dynamic. Her report states that static factors assess the risk of recidivism using actuarial assessment. Dynamic factors are those “involved in the individual’s sexual offending behaviour… [and] relate to an offender’s current psychological state”.
In her updated report, Dr Z explains “static assessments of risk are based on historical factors and are, therefore, by definition unchangeable.” However, she considered the father’s dynamic assessment would be affected by the psychological treatment he has received; treatment that is “improving his coping skills, ability to challenge offence-focussed thinking, such as minimisations and understanding the attachment and intimacy concerns that contributed to his appropriate and abusive behaviour”. She opined “I would be prepared to review [the father’s] dynamic risk assessment to be in the moderate range. This would bring his overall assessed level of risk down somewhat to the moderate range.”
In her oral evidence, Dr Z clarified the extent to which a risk assessment may change. She said “You can’t actually, by convention, reduce - there’s no justification to reduce a static risk assessment rating by greater than two categories. So if the static risk assessment rating is high it’s not justified to reduce that past the moderate range. There’s no evidence for that.” She further said:
MS GODTSCHALK: So it [the father’s revised dynamic risk assessment] was reducing it [the father’s overall risk assessment] towards the moderate range, not into the moderate range?
DR [Z]: Well, it’s - yes, it’s around that. I’m comfortable with that.
So the father’s risk assessment, which was high to moderate, has lessened but is still one which exceeds moderate risk.
Dr Z opined that the father’s Relapse Prevention Plan “outlines the main skills and strategies required for safe risk management for [the father].”
The father relies on the findings by Faulks DCJ about the risk that he posed, specifically to the child, and Dr W’s evidence at the first hearing.
At paragraphs 46 and 62 of his Reasons for Judgment dated 4 August 2006, Faulks DCJ found the father did not pose an unacceptable risk of sexually interfering with the child or that he would interfere with any of the child’s friends.
The father submits that when Dr Z’s report references his risk of re-offending, it refers to a risk of further exhibitionistic behaviour in front of adult women, rather than adolescent girls.
I am unable to accept that Dr Z confines the risk the father poses in that way or that in fact the risk that father poses can be confined in that way. In cross examination, Dr Z agreed the father’s risk would pertain to adults and “unrelated teenage girls”. As indicated below, Dr Z makes specific recommendations for public forums and adult supervision if the father is to be around the child’s friends.
Has the father minimised the history of his previous behaviour?
There was a focus at the hearing on whether the father had minimised the history of his previous behaviour to Dr Z and Mr V. The issue was whether the father’s inappropriate exhibitionist behaviour predated the death of his mother in 1996. The father insisted it did not. This was inconsistent with notes made by Ms K, a psychologist in Townsville, who the father attended upon for therapy in 1998. At the first consultation with Ms K on 3 April 1998, Ms K records in her handwritten notes, inter alia:
“[The father] masturbates in inappropriate places in his home/apartment. He stands on a balcony of an apartment (on about the fifth floor) and is stimulated by the risk of exposure and fantasies that people walking by will become aroused or initiate contact……
- Began exhibitionistic behaviour in early 20’s.”
As is clear from Ms K’s records, the mother was present at the initial interview between Ms K and the father on 3 April 1998. The mother gave sworn evidence that she remembered that the father told Ms K that his exhibitionist problems began in either in his late adolescence or early 20’s (which would have been about 1974). More than that, the mother gave evidence of her own experience from earlier in her relationship, prior to the father’s mother’s death, which corroborates the notion that the father’s problematic exhibitionist behaviours predated the death of his mother.
In a letter written to the father’s treating doctor dated 30 January 2004, Ms K reports:
“2. Assessment of [the father’s] problem
[The father’s] initial request for help followed an inquiry by the police who were following up a complaint with a person in the vicinity of his apartment had been seen masturbating on the balcony overlooking the beach. [The father] attended his first session with his wife. He stated that this behaviour had been a problem since his adolescence and that it was interfering with his psychological wellbeing and his marital relationship.”
At one point the father’s absolute denial that he had problems prior to 1996 became more equivocal. During his cross examination he said:
Early 20s? I have never exposed myself. I think she’s [Ms [K]] meaning I did masturbate at times, like in my home, looking at people, women walking by - and occasionally in my motor vehicle. But I never exposed myself to them. I never had any charges or convictions. That’s the stuff that’s a fact.
He later reiterated during his cross examination:
I don’t know where she [Ms [K]] got that idea, honestly. We talked about my past…A lot of kids deal with this stuff, but – rather than form healthy relationships with women, I would just masturbate, you know. I don’t know why she thinks I was exposing myself back then because the substantive fact is there are no charges or convictions until 2000, and that’s the fact.
Later, during the cross examination of Mr V, we had the following exchange:
[THE FATHER]: Again, I say to you: I wasn’t using public balconies or public exposure back then. I don’t know where you got the idea of the balcony. That’s something that
HIS HONOUR: Where did I get the balcony?
[THE FATHER]: Well, [Ms] [K] told us that in her report.
HIS HONOUR: Well, it’s in [Ms K’s] report to your solicitor and she got it from what you said to her in a conference in April 1988.
[THE FATHER]: Like I said yesterday, we were discussing my behaviour in [north Queensland] regarding balconies. I told you yesterday, I didn’t do exposure in my early twenties. Now, all I said was it’s possible
HIS HONOUR: Sorry, what did you say?
[THE FATHER]: I said perhaps it’s possible someone did see me, back then, but I wasn’t using balconies. It was a very infrequent event, if I was masturbating, back then. I was honest with you. I said, ‘Yes, I did masturbate, sometimes.” I might see a woman through the window of my apartment or even if I’m in a motor vehicle sometimes, but I wasn’t actively exposing myself, back then. That’s my point. I guess Ms [K] extrapolated it.
The mother gives a history which is at odds with the father’s memory about the father’s early behaviour.
I find that in that initial session with Ms K on 3 April 1998, that he did indicate to Ms K that his exhibitionist behaviours began in his adolescence or early 20’s.
I find that the father had a problem with paraphilia from at least his early 20’s. I accept the father’s evidence that these difficulties escalated after the death of his mother in 1996.
On one level, this whole issue is of little relevance. Firstly because, as the father pointed out on a number of occasions, it is very historical in its nature. Secondly, because Dr Z herself said that she would have expected the father to have minimised his earlier behaviour in the way the mother has suggested he has.
The real problem however with the father denying what the mother says she witnessed (and I find she did witness) is that it feeds into and exacerbates the mother’s fears that the father’s treatment has been based on a flawed history and has been insufficient to protect the child from being exposed to the consequences of a recurrence of that behaviour by the father.
The mother’s mental status and the effect of the father’s behaviour upon the mother
The mother says in her affidavit “I do not feel comforted by the fact that [the father] has not had any criminal offences for a number of years. I witnessed many occasions of him offending yet there are only three recorded convictions.”
The mother said during their marriage she became apprehensive about visiting friends with teenage daughters. She says she is “not confident [the father] could demonstrate appropriate boundaries with [the child]” given his relationship with ‘Catherine”, and that she “does not accept that [the child] will be safe with him.”
The mother’s psychologist Ms G gave evidence about the mother suffering from two conditions. Firstly, Ms G is of the opinion that the mother has Generalised Anxiety Disorder. The symptoms of this include excessive worry and associated somatic symptoms such as sleep disturbance and fatigue.
Secondly, Ms G is of the opinion that the mother also suffers from post traumatic stress disorder. This disorder has developed as a consequence of the mother’s beliefs about the father’s sexual paraphilia and as a result of her reaction to litigation which has continued since 2006. This disorder produces intense anxiety in the mother in response to triggers related to the father. That anxiety manifests itself in panic attacks, sleep disturbance, hyper-ventilation, dissociation, psychomotor agitation, hyper-vigilance and loss of concentration. The mother reports recurrent and intrusive imagery. Ms G reports that the symptoms of the mother’s anxiety disorder are being managed pharmacologically by her general practitioner along with counselling, cognitive behaviour therapy and lifestyle intervention.
Ms G regards the mother’s prognosis in relation to her anxiety disorder as good.
However, in relation to the post traumatic stress disorder, Ms G is of the opinion that her intense symptoms pose a risk to her psychological wellbeing and her future capacity to cope. That risk extends to a risk to her continuing ability to function in providing high quality parenting to the child S. Ms G comments that the trauma produced by this disorder has been compounded and become somewhat resistant to any treatment as a result of the length of the litigation.
Ms G opines that for the court to order that the child spend any time with her father would lead to the mother experiencing an intense and prolonged exacerbation of her psychological symptoms. She says there is a potential for significant decompensation to the mother’s health at a time. Ms G concludes that there is in fact, a risk of the mother involving herself in self harm or being pushed to the point of developing psychotic/delusional symptoms. I accept Ms G’s evidence in its entirety.
Evidence given by the mother’s General Practitioner confirmed that the mother has gone on and off antidepressants at different times during the course of the litigation between the mother and the father. The mother was on antidepressants in 2006 and 2007. She stopped being prescribed antidepressants in early 2008 for a period of approximately six months. The mother ceased antidepressants again in April 2010 but by July 2011 had resumed the use of antidepressants following a history of panic attacks.
The mother’s General Practitioner has obviously seen the mother over an extended period of time. She opined that the mother genuinely thought that her daughter’s safety was at risk if she had regular contact with the father.
It is interesting to note that the mother’s use of antidepressants has correlated to some degree with the pattern of the litigation (generally she has been off medication during lulls in the litigation).
The mother’s General Practitioner expressed the opinion that the stress between 2006 and 2012 had had a cumulative effect upon the mother and her concern was the longer the litigation went on the more the mother’s mental health would deteriorate. She is also of the view that the mother is now at an increase risk of a major depressive disorder.
The father cross examined Ms G to explore with her whether or not the mother could get over her problems by either challenging her anxiety and identifying it as irrational (using what the father referred to in submissions, but not in his questions to Ms G, as “self-empowerment”) or by getting better therapy (implicitly from a different therapist).
I find that Ms G is a therapist of long experience. She has been treating the mother for five years. I find that it is unlikely that the mother changing therapists would improve the mother’s disorders.
The practicality of any potential contact between the father and the child
The father is a citizen and passport holder of the USA and Australia. He often travels between the two countries.
The mother asserts the father is often overseas for months at a time, making regular contact difficult.
The father was extensively cross examined on his overseas travel since September 2008. He gave a full itinerary of his travels in the last three years:
107.1.He departed Australia on 15 September 2008 and … returned on 2 November 2008.
107.2.In May 2009, he flew to Asia, returning in late August 2009.
107.3.In January 2010, he spent a month abroad heading to Japan with friends …
107.4.He returned to Australia but quickly departed again on 14 February 2010, and headed to China for three weeks…
107.5.He returned to China in July 2010 and spent three months with that woman.
107.6.In February 2011, he went to the Philippines for one month ...
107.7.He returned to the Philippines in late June 2011 … He spent three months overseas but explained “the majority of that time [I]… was in Europe….” He said that of the three months he spent “about six weeks in Europe and four weeks in India.”
107.8.He returned to Australia for less than a week, and flew to Southeast Asia for a week.
107.9.In December 2011 he flew back to the Philippines … and returned on 13 March 2012. He explained he was scheduled to arrive in Australia but was “stuck in Burma for awhile….”
Given the history of the father’s overseas travel, I find it is highly likely that the continuity of any time the father has with the child will be significantly disrupted by the father’s overseas travel.
Possible supervised time
In his affidavit, the father states that M Family Centre, the contact centre where visits were held in 2004, is not willing to accommodate any contact if ordered by the Court.
However at the hearing, the father produced an email from the Program Manager at M Family Centre. They are willing to accommodate contact if both parties contact them individually and confirm their willingness to use the service. They state their waiting list is approximately six months or longer.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII FLA are to ensure that the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) 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
(b) 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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.
Primary considerations
In some of the following discussion, I repeat some of the things I said in my judgment of 26 February 2010.
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)
I accept the father’s submission that, if it was otherwise possible, the child would benefit from having a meaningful relationship with her father. The central issue in this case is whether or not other factors mitigate against the child being able to have the opportunity to develop a meaningful relationship on a face to face basis with her father.
The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. One of the reasons Faulks DCJ ultimately decided not to allow face to face time was the negative impact that even supervised contact would have on the mother which he found could have “vicariously unfortunate effects on [the child]”. The evidence I have indicates that nothing has changed in relation to that conclusion. In fact, that negative impact has now become decidedly worse with the mother having been diagnosed as having generalised anxiety disorder and post traumatic stress disorder.
Deputy Chief Justice Faulks found it was “more likely than not” that, without treatment, the father may engage in “exhibitionist” behaviour in the presence of friends of the child. I am unable to conclude that that risk has abated. In her updated report, Dr Z opines “[the father] should not be able to have [the child] and her friends stay at his house at any time. Rather, if he is to be involved with his daughter’s friends, it should only be in a public forum with other supervising adults present.”
The additional considerations
Children’s views (s60CC(3)(a))
As indicated above, on 3 November 2011 I made an order that a Family Consultant interview the child “to generally find out about [the child’s] current views and attitudes relating to her father”. I also ordered that the Family Consultant not interview either parent and only read my judgments of 26 February 2010 and 18 April 2011. The child was interviewed by the Family Consultant, Ms H on 14 February 2012. The report writer records that the child is in year 5 at school this year (although she is young for her school year). The child reported that she liked school and had friends. The child’s presentation was typical for her age. It was the report writer’s observation that the child felt uncomfortable and stressed at times when questions were asked about her father.
The child identified her family as being her mother and her dog and she added that she had lots of cousins, uncles and aunties. The child described herself as “fun”, “energetic” and “caring” and described her mother in very positive terms (she was impressed by the fact that her mother was a nurse).
When specifically asked questions in relation to her father, she responded that “I don’t know”. The Family Consultant said to the child that she had formed the impression that she did not want to talk about her father. The child replied, “its yuck”. Using “Bear Cards”, the Family Consultant asked a few more questions regarding the child’s father. The child chose a bear that she described as “sad” to illustrate how she would feel in the event that she was to “see her father”. The Family Consultant inquired why the child would feel sad under these circumstances and the child replied “I don’t want to see him”. The child said that she would also feel “worried” if she had to see him. The child’s wishes for her future were “Just to be able to live with my mum. That no one will make me live with my dad”.
Two matters emerge from the interview. Firstly, the child does not have any idealised view of her father or strong longing to have time with him. That is not surprising given that she has had no direct contact with him since May 2007.
The other is that the child has a general wariness of seeing her father without having any explicit knowledge as to the fears that are harboured by her mother.
The mother’s General Practitioner gave evidence that in November 2011 the mother said that she was finding it difficult to hide her anxiety from the child. I have got no doubt that the child has picked up from the mother some of the anxiety that the mother harbours in terms of any possible order being made for the child to spend time with her father (no matter what safeguards are put in place).
Relationships of the children with the parents and other persons (s60CC(3)(b))
The child has not had any face to face time with her father since 2007. Letters from M Family Centre at that time indicate that the child’s time with her father was a satisfactory experience for her, although the second letter from M Family Centre indicated that from the mother’s point of view, there was a disturbed behaviour from the child after that contact.
So far as I can tell, there was no issue at the first trial as to the nature of the relationship between the child and her father.
At paragraphs 63 and 64 of his first judgment, Faulks DCJ says :
63.….The child and father have had time together under supervision at the changeover and contact centre in Canberra at [M Family Centre] and at least according to the father this has been a satisfactory (but severely limited) experience.
64.The mother reports some disturbed behaviour from [the child] in and about “contact” but it would appear that at the very least the visits have been neutral. The circumstances as the father complains are inevitably artificial….
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))
The mother’s case is openly based on the proposition that she is resistant to facilitating and encouraging a close and continuing relationship between the child and her father. I accept her reasons for doing so are genuine and that her treating psychologist has correctly diagnosed her current mental status. Whilst the father has admitted much of what he has done in the past, there is an aspect of his admissions which are understated. I accept that this feeds into the great disquiet the mother feels. I accept that she has lived with the father and experienced his behaviour and probably knows better than any person other than the father as to what the real history of the father’s problematic behaviour has been. I am unable to say that the mother’s genuine fears are unreasonably held.
Likely effect of any change in the children’s circumstances (s60CC(3)(d))
Having regard to the evidence of Ms G, set out above, the likely effect of me making orders as sought by the father, which would dramatically change the current situation, are probably dire for the mother and consequently for the child. There is a seriously possible risk that the mother’s mental status will deteriorate into a psychotic/delusional state and that the risk of the mother self harming could not in those circumstances be ruled out. That obviously would have a profound effect on the mother’s ability to parent the child and in turn, a profound effect on the child.
Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))
There was no indication that there would be any practical difficulties or unaffordable expense if the child was to spend time with her father on an unsupervised basis. If that time was to be supervised, then arrangements may be more problematic. The letter from the Program Manager at M Family Centre (exhibit 1) indicated that they are willing to facilitate contact if both parents agree to use the service. They indicated there is currently a waiting list of at least six months.
The father’s regular time out of the country may make a regular regime practically difficult.
The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))
The mother’s general capacity to parent the child is not in doubt. I have already discussed at length above, my conclusion that this litigation is having a deleterious effect upon the mother’s parenting capacity.
The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))
The child was almost two years old when litigation commenced. She is now aged 10. She has lived almost exclusively in the care of her mother.
If the children are Aboriginal or Torres Strait Islander (s60CC(3)(h))
Not applicable.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))
Section 60CC(4)(c) FLA provides that when considering a parent’s attitude to the children and to the responsibility of parenthood, a court must consider how a parent has fulfilled or failed to fulfil their obligation to maintain the child. The mother makes the point that the father, whilst being able to travel extensively overseas each year, is paying $7.10 per week for child support. The father on more than one occasion during the hearing justified that payment on the basis that he was paying what the Child Support Agency assessed that he should pay.
The father also made the point that the mother did very well out of the property settlement and she received an adjustment pursuant to s 75(2) FLA. I explained to the father that that was not an order for lump sum child support. In fact the father received more of the assets than the mother out of the property settlement but claims because of the global financial crisis and its effect in America, the value of real estate that he has in America has diminished considerably.
The father’s evidence was that he receives Government benefits. He explained that he was able to travel overseas because it is in fact cheaper to live at the locations he tends to go to when he goes overseas than it is to live in Canberra and that he stays with friends. In the context of this case, the father’s payment of child support is a peripheral issue and it was appropriately not the subject of any detailed cross examination.
The father however at one point did indicate that he was not too interested in paying money to the mother in support of the child because of her attitude to the child seeing him.
Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))
Family violence was not raised as an issue in these proceedings.
Likelihood of order leading to further proceedings (s60CC(3)(l))
It is important for the mother’s mental health and for her ability to function as the child’s parent, for orders to be made that, so far as possible, end the protracted litigation between the parents.
Other matters
In her updated report dated 8 December 2011, Dr Z recommends the father have supervised contact with the child. She recommends this occur at a contact centre once a fortnight, but increasing to weekly if the sessions are well received by the child. Dr Z also anticipates that if the father’s treatment progress is sound and sessions with the child are going well, the father could be granted unsupervised access including overnight visits.
Dr Z does not consider the father has fully addressed his intimacy and attachment issues, although she comments that his issues are long standing and unable to be fully addressed in 12 sessions. However, she opined that it was unnecessary for the father to fully address these issues in order to have supervised contact with the child.
Dr Z did not see the child with the father, nor did she see the mother. Dr Z was not asked to express any opinion about the ultimate issue. I do not place any weight upon Dr Z’s unsolicited opinion about what might be in the child’s best interests.
EQUAL SHARED PARENTAL RESPONSIBILITY
Given that there is no communication between the parties and there is no likelihood that there is to be any, I conclude that it is not in the child’s best interests for an equal shared parental responsibility order to be made. A sole parental responsibility order should be made in favour of the parent with whom the child lives, namely the mother.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
Given that I have not made any order for equal shared parental responsibility, I am not statutorily required to consider equal time or substantial or significant time. I will find that it is not in the child’s best interests to spend either type of time with her father.
CONCLUSION ABOUT BEST INTERESTS (AND ABOUT RICE & ASPLUND)
The father has been tenacious in attempting to have a relationship with the child and I accept his concerns that the child will grow up not having a relationship with him are genuine. That tenacity has led the father to seriously take on board the advice of Dr Y and attempt to obtain the treatment that has been recommended.
I find that after the orders I made on 26 February 2010, the father obtained a forensic assessment from Dr Z and involved himself in further treatment consistent with that assessment. These actions are relied upon by the father to constitute a significant change in circumstances to satisfy the test in Rice & Asplund.
Unfortunately however, Dr Z’s assessment is that the father has static risk factors that cannot be and have not been ameliorated by therapy to or below a moderate level.
The risk is not necessarily directly to the child herself, but the father acting inappropriately in the child’s presence if left unsupervised with her. In this regard, nothing much has changed.
Long term supervised time between the child and her father (if everything else was equal) might have been a viable alternative.
However, ultimately this case turns on the mother’s genuine fears which have seriously affected her psychological health. I have no difficulty finding that if the mother’s psychological health is significantly compromised, then it would be a significant impediment to her capacity to parent and would in turn pose a significant risk to the child’s psychological development. In the end, based on that alone, I have reached the conclusion that firstly, that circumstances have not significantly changed in the father’s favour for there to be a different outcome to the previous one, and secondly it is in the child’s best interests to dismiss the father’s most recent application. The mother is however, to provide the child with any appropriate communication that the father sends the child and to provide the father with regular reports on the child’s school progress.
SECTION 118(1)(c) FLA and SECTION 114(3) FLA
The mother made an application for an order that the father not file any further applications in relation to the child unless he first obtains the court’s leave and in relation to an application for leave, that application not be served upon the mother unless the court authorises the father to do so.
The father opposes any order that would restrict his ability to make a further application to the court in relation to the child.
There have been an extensive number of applications and appeals in this matter. Litigation between the parties commenced in December 2003. I set out at paragraph 15 of my Reasons for Judgment of 26 February 2010 a list of applications and appeals relating to proceedings and events from 27 January 2004 to 28 July 2008. Paragraphs 12.3 and 12.4 of the same judgment refer to the decision of Faulks DCJ on 28 August 2008 and the decision of the Full Court on 26 August 2009. The hearing dates when the matter was before me in 2009 and 2010 are set out in my Reasons of 26 February 2010 (there were seven days in court in all). There have been a number of mentions in relation to the father’s current application (and an interim judgment delivered after a hearing on 18 April 2011). The final hearing of the matter before me took place on 2 and 3 April 2012. The history of the litigation since 2004, whilst on occasions intermittent, has been unrelenting. As set out above, it has taken its toll on the mother.
The Full Court in Bennett & Bennett (2001) FLC 93-088 rejects s 68B FLA as a source of power to make the orders of the type sought by the mother and concluded that unimpeded access to courts is a fundamental right, which can only be abrogated or curtailed by a statutory provision, the intent of which is “unambiguously clear”. In doing so, the Full Court recognised that some might argue that the principles of general law upon which the Full Court relied in Bennett have no application in cases involving children, and that in such cases the welfare of the interests of the subject child are the paramount consideration. The Full Court rejected this notion and pointed that the paramountcy principle does not apply to s 68B(1) or (2) for an injunction “in relation to a child” and added at paragraph 49 “[b]ut even if that were not so, we have difficulty in seeing how the common law principles on which we have based this decision could be displaced by that consideration”. It follows that the Full Court in Bennett would have also been of the opinion that s 67ZC FLA (which is subject to the paramountcy principle) would also not provide a source of power to make the orders sought by the mother.
The power to make the order sought by the mother is found in both s 118(1)(c) FLA and in rule 11.04(1) Family Law Rules 2004 (Cth) (“FLR”).
Section 118(1)(a) to (c) FLA provides:-
The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a)dismiss the proceedings;
(b)make such order as to costs as the court considers just; and
(c)if the court considers appropriate, on the application of a party to the proceedings -- order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
The word “proceedings” is defined in s 4 FLA as follows:
Proceedings means a proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connection with a proceeding.
Rule 11.04(1) FLR is in the following terms;
If the court is satisfied that a party has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:
(a) dismiss the party's application; and
(b) order that the party may not, without the court's permission, file or continue an application.
The words “frivolous” and “vexatious” are not defined by the FLA.
An Explanatory Guide (accompanying but not forming part of the FLR) provides the following explanation of the words “frivolous” and “vexatious”:
frivolous— not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless (see also vexatious).
vexatious, in relation to an application — having no reasonable prospect of success (see Section 118 of the Act for the court’s powers in relation to a vexatious case; see also frivolous).
It can be seen, the words “frivolous” and “vexatious” are related in that, by definition, a frivolous application is a vexatious application.
The Oxford Dictionary of English 2nd edition records that the original meaning of the word “vex” was to cause distress, whilst its more modern meaning is to make somebody feel annoyed, frustrated, worried, irritated or unhappy.
Mullane J in Darwin and Darwin [2008] FamCA 588 said:-
16. “Frivolous” is defined by the Macquarie Dictionary as “of little or no weight, worth or importance”, “Not worthy of serious notice”, or “characterised by lack of seriousness or sense”.
17. The mother’s case is not that the father’s application is frivolous. From the evidence it appears she relies on the ground that it is “vexatious”.
18. “Vexatious” is defined by the Macquarie Dictionary as “something that vexes” and “vex” is defined as “to irritate, annoy, provoke, make angry”, “to torment”, “plague, worry”, and in the sense use of legal actions is defined as “instituted without sufficient grounds, and serving only to cause annoyance”.
In Sinclair-Small & Sinclair [2008] FamCA 1056, Dawe J generalised by saying:
27. It is not frivolous of a father to seek to spend time with his children.
Her Honour went on to consider whether, in that case, the application was vexatious and found that it was not.
It can be correctly argued that, in this case, the father’s application is not frivolous in that it cannot be said that the application is of “little importance” or “not worthy of serious notice”.
In Attorney General (NSW)v Wentworth (1988) 14 NSWLR 481, at 491, Roden J set out a test for determining whether proceedings are vexatious, in the context of s 84 of the Supreme Court Act 1970 (NSW), as it then was. This test has been widely cited and applied (see for example, Mullane J in Darwin and Darwin [2008] FamCA 588 at paragraph 20). Roden J set out the test as follows:
I believe that the test may be expressed in the following terms:
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.
4. In order to fall within the terms of s 84:
(a)proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);
(b)the proceedings must have been “habitually and persistently” instituted by the litigant.
As can be seen, the motive of the applicant is not necessarily relevant to the assessment as to whether or not the proceedings themselves are vexatious.
An issue that arises in this case is whether or not the expression of the meaning of vexatious proceedings as described by Roden J is exhaustive. I have concluded that they are not.
I note in passing that the definition of vexatious proceedings in the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (yet to pass Parliament) is an inclusive one in the following terms:
vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The present case involves protracted serial proceedings over many years, involving a child, in circumstances where that litigation itself has had a significant effect on the psychological health of the primary care giver of that child and potentially future litigation might have a far greater effect on the psychological health of the primary care giver to the extent that that person’s parenting capacity might be seriously compromised. I accept that the mother has, inter alia, developed post traumatic stress disorder, substantially as a result of the persistent litigation.
The question to be considered is whether or not the proceedings brought by the father, whilst not falling precisely within any particular description, are nonetheless vexatious when considered in the light of the effect that the proceedings has had on the respondent in the proceedings.
It is my view that in a very narrow group of cases (of which this is one), where there is clear evidence upon which a finding can be properly made that:
174.1.the current proceeding is only the most recent proceeding in a long series of litigation about the same child or children; and
174.2.the cumulative effect of serial proceedings and, in particular the current proceedings, has caused the primary carer considerable distress, worry, annoyance, irritation and unhappiness to the extent that it has had a profound affect on their psychological health and potentially their ability to continue to care for the child;
then it is open to the court to make a finding that the most recent proceedings can indeed be described as vexatious within the meaning of s 118 FLA.
In the circumstances of this case, I find I have power to make an order pursuant to s 118(1)(c) FLA.
As Cronin J pointed out in Lindberg & Scott [2009] FamCA 465, an order under s 118 FLA does not restrict the freedom of the father’s access to the court. Rather, it means that the mother does not have to be involved in any further substantive litigation between herself and the father relating to the child until the court gives the father leave to institute further proceedings.
I also find I have power under Rule 11.04(1) FLR to make an order of the kind sought by the mother.
When exercising the discretion pursuant to s 118(1)(c) FLA or alternatively under Rule 11.04(1) FLR, I take into account the history of the litigation between the parties dating back to the beginning of 2004, the precise details of which I have referred to in previous judgments as referred to above. Since the final hearing before Faulks DCJ, the father has unsuccessfully appealed to the Full Court and the High Court. He has made two applications for final orders and in both of them findings have been made by me that he failed to satisfy the threshold test in Rice & Asplund. I have formed the view that it is likely that any future litigation between the parties will be to the child’s detriment. I find that it will place increased and undue pressure on the mother and given her fragile psychological state in matters where the father is involved, any future litigation will affect the mother’s ability to function in the normal manner as the child’s mother. The best thing that can happen for the child in this case is for her mother to be able to move on in the secure knowledge that it is unlikely (absent some very significant change in circumstances) that the court would grant the father leave to make any further application in relation to the child. Whilst the child’s best interests are not the paramount consideration under s 118 FLA or r 11.04(1) FLR, it is a very weighty matter. For those reasons, I find that it is appropriate to make an order under s 118(1)(c) FLA or alternatively under r 11.04(1) FLR against the father.
Consistent with the reasons already expressed, whilst s 118 FLA and r 11.04(1) FLR explicitly provide that leave has to be obtained before the filing of any application for parenting orders, the service of that application upon the mother and the requirement that she attend court to oppose any leave application will itself cause distress. Consequently I intend, pursuant to s 114(3) FLA, to restrain the father from serving any application for leave to file further proceedings upon the mother, unless the court first allows that to happen. The intent is that before the mother in these proceedings is engaged in any way in any future process, the Court on an ex-parte basis would assess whether or not the papers seeking leave to file proceedings should be served upon the mother to the proceedings. If the father makes any future application for leave, he will be required to, on an ex-parte basis, satisfy the court that the application for leave to institute proceedings should be served upon the mother. Alternatively, it may be that given the circumstances and history of this case, the application for leave could be summarily dismissed without further worrying the mother.
I have been requested by counsel for the mother to remain as case management judge in relation to any future applications brought by the father in relation to the child.
I think it is appropriate for me to remain as case management judge in relation to any application for leave to commence further proceedings, even if I am not the judge who hears the proceedings if leave is granted.
The listing of any further application by the father for leave to bring an application about the child and for leave to serve that application on the mother will be heard by me, if I am reasonably available.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 July 2012
Associate:
Date: 18.7.12
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