Marsden & Winch - [2013] FamCAFC 177

FAMILY COURT OF AUSTRALIA

MARSDEN & WINCH

[2013] FamCAFC 177

FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time –Whether the trial judge erred in finding that the father posed an unacceptable risk to the child such that the need to protect her from harm under s 60CC weighed against the father having contact with the child –Whether the trial judge made findings contrary to additional evidence and the expert – Where trial judge found that the father’s circumstances had not significantly changed – HELD – Findings open on the evidence.
FAMILY LAW – APPEAL –PRACTICE AND PROCEDURE –Vexatious litigant – Whether proceedings were vexatious or frivolous within the meaning of s 118 of the Act – Where parties have been engaged in protracted litigation – Whether r 11.04 can be used as an alternate source of power to s 118 to declare a party a vexatious litigant – HELD – Trial Judge erred in finding that the father’s application was frivolous or vexatious.

Family Law Act 1975 (Cth): ss 118, 114, 60CC, 68B, 67ZC, 123
Family Law Rules 2004 (Cth): r 11.04

Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256
Bennett & Bennett (2001) FLC 93-088
DJC and SJS and Child Representative (2006) 34 Fam LR 329
DL & W (2012) FLC 93-496
Edwards v Noble (1971) 125 CLR 296
Harrington v Lowe (1996) 190 CLR 311
JB and BW [2006] FamCA 639
Marsden & Winch (No 3) [2007] FamCA 1364
Marsden & Winch (2009) 42 Fam LR 1
Marsden & Winch [2010] FamCA 130
Marsden & Winch [2011] FamCA 369
Marsden & Winch [2012] FamCA 557
Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210
Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29
Rice & Asplund (1979) FLC 90-725
Ridgeway v The Queen (1995) 184 CLR 19
Theophane & Hunt [2013] FamCAFC 68
Vlug and Poulos (1997) FLC 92-778
Winch & Marsden [2006] FamCA 715

Zabaneh & Zabaneh (1986) FLC 91-766

APPELLANT:	Mr Marsden
RESPONDENT:	Ms Winch

FILE NUMBER:

CAC

373

2008

APPEAL NUMBER:

105

2012

DATE DELIVERED:

12 November 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Ainslie-Wallace & Ryan JJ

HEARING DATE:

15 May 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 July 2012

LOWER COURT MNC:

[2012] FamCA 557

REPRESENTATION

FOR THE APPELLANT:

Mr Marsden in person

COUNSEL FOR THE RESPONDENT:

Ms Godtschalk

SOLICITOR FOR THE RESPONDENT:

Women’s Legal Centre

Orders

The appeal against the orders of the Honourable Justice Watts made on 18 July 2012 be allowed in part.
Orders 15, 16 and 17 of the orders made on 18 July 2012 be set aside.
The appeal otherwise be dismissed.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 105 of 2012
File Number: CAC 373 of 2008

Mr Marsden

Appellant

And

Ms Winch

Respondent

REASONS FOR JUDGMENT

Mr Marsden (“the father”) appeals against orders made by Watts J on 18 July 2012 in parenting proceedings with Ms Winch (“the mother”) relating to the child of their relationship (“the child”). The mother resists the father’s appeal and seeks to maintain the trial judge’s orders.
The parents have engaged in litigation since 2003 over the time to be spent by the child with the father. There have been several contested hearings. It is necessary to set out the history both of the litigation and the parties in order to give a context to the appeal.

Background

The parties married and commenced cohabitation in 1984. For the following decade they lived abroad, returning in 1994 to live in Australia.
In February 2000 and March 2000, the father was convicted for wilful and obscene exposure.
Between about January 2001 and January 2002, the father became romantically interested in a schoolgirl aged 13 or 14 years. He stole and kept the girl’s underwear and carried a photograph of her.
The child was born after these events. She is the only child born of her parents’ relationship.
In June 2002, the father was convicted of indecent behaviour (unrelated to the schoolgirl).
The parties separated in June 2003. Following separation, the mother and child moved to a city located in eastern New South Wales and approximately 12 months later the father moved there as well.
In December 2003, the mother commenced proceedings (the original proceedings) seeking an order that any contact between the father and the parties’ child be supervised. Supervised time was ordered on an interim basis. In 2004 the father had four supervised visits with the child at a contact centre. The mother alleged that he did not comply with rules imposed by the supervisor. On 3 May 2004 the contact orders were suspended.
In 2005, the father filed an application for contact on an interim basis pending the final hearing.
A single expert, Dr W, was appointed to provide expert evidence. Dr W provided his report in May 2005 and recommended that the child resume supervised contact with the father.
On 14 September 2005, Faulks DCJ made orders that provided for the father to have supervised contact for four periods only, after which either party could then reapply for a reduction or increase in supervised visits.
The father resumed supervised visits at a contact centre in November 2005.
On 29 December 2005, the father filed an application for an increase in supervised visits to weekly supervised contact. He further sought that if unsupervised contact was not entertained by the court, that some private party be used and that the costs of this be shared between the father and mother. Finally, he sought that the mother be admonished not to manipulate the child against him, that phone contact be increased to twice a week and that he be allowed to provide gifts of an appropriate nature. The mother sought an order that there be no contact between the father and the child.
On 1 February 2006, Faulks DCJ dismissed the father’s application and ordered the parties to attend a pre-trial conference. However, his Honour made an order that the father could provide gifts to the child on her birthday.
On 4 August 2006, Faulks DCJ heard and determined the original parenting proceedings commenced by the mother. His Honour ordered that the child live with the mother and have no direct contact with the father. He further made orders that permitted the father to send written communications and gifts on the child’s birthday and Christmas. The mother was to provide the father with written reports of the progress of the child at six month intervals.
The father appealed his Honour’s orders (the first appeal) and sought a stay of the orders of 4 August 2006, arguing that, because of the appeal process, if the orders were not stayed and he was successful on appeal, there would then be a substantial gap between the times that he would have seen the child which would not be in her interest. Faulks DCJ ordered a stay of his orders and, pending the hearing of the appeal, ordered that the father have supervised time with the child.
Thus, the father continued to spend time with the child at a contact centre. This occurred until May 2007 when the contact centre suspended the visits. The child has not seen the father since the last supervised visit at the contact centre which was on 12 May 2007.
On 4 December 2006, the mother appealed the order granting the stay and allowing for supervised contact (the second appeal).

Reasons for judgment of Faulks DCJ of 4 August 2006

His Honour identified the issue underlying the dispute between the parties over the father’s time with the child at [43] where he said:
43. A major issue in these proceedings about [the child] is the condition of the father which in the past has led him to public indecent exposure and public masturbation. Perhaps naturally enough the mother is concerned that the father’s proclivities may translate into something which is damaging to [the child]. The father while conceding that the activities referred to above have occurred in the past draws attention to the fact that there have been no convictions for such behaviour recently and moreover he asserts that there is no reliable evidence that he is continuing in those sorts of behaviour.
Faulks DCJ found that the evidence did not enable him to conclude that the past admitted behaviour by the father, even if continued “…must necessarily lead to some inappropriate sexual interference with his [child]…” [45].

His Honour thus concluded that there was not an unacceptable risk that the father “must or would” sexually interfere with the child [46].
His Honour noted that the single expert [Dr W] engaged to give an opinion in the matter had recommended that the father consult an expert with particular knowledge of paraphilia. His Honour further observed that the father had chosen not to do that [50].
Before Faulks DCJ was evidence on which he found that in January 2006 the father had been masturbating in his car at a public swimming pool. There was also evidence about the father’s relationship with the schoolgirl to whom reference has already been made.
His Honour concluded at [62] that the evidence left him “…with a very serious concern that he may either directly or indirectly show interest in friends of his child at a later point and the consequences of his doing so at their most extreme do not need to be further canvassed.” (emphasis in original)
Faulks DCJ said that he could not find that the father would interfere with the child’s friends but found that, without treatment, he may engage in “exhibitionism” with the child’s friends [62].
Turning to the past supervised time between the father and any prospective contact between the child and the father, Faulks DCJ considered the effect on the mother of continuing time between the father and the child.
His Honour found that continuing contact between the father and the child provided no benefit for the child, however, he determined that the father should have the opportunity of writing to the child.
On 20 December 2006, the father filed a cross appeal (to the second appeal) challenging the orders for costs against him and the refusal by Faulks DCJ to make other orders he sought at the time of the stay.
As was mentioned earlier, the contact centre suspended the father’s time in May 2007. He then filed an application to reinstate his time with the child, which was opposed by the mother, and in relation to which she applied to discharge the order for supervised time. Both applications were dismissed by Faulks DCJ on 21 August 2007. He ordered that the father pay two-thirds of the mother’s costs.
On 17 September 2007, the father filed an appeal (the third appeal) against the order for costs and dismissing his application.
On 21 November 2007, the Full Court in Marsden & Winch (No 3) [2007] FamCA 1364 dismissed the father’s appeal against the orders made by Faulks DCJ on 4 August 2006. The Full Court determined it was unnecessary to hear argument about the merits of the second appeal and a third appeal (by the father) against dismissal of two applications by him for supervised time, save as to costs. The orders that the father pay the mother’s costs were discharged and orders made that each party bear his or her own costs and for directions in relation to costs of the appeals.
The father sought special leave to appeal to the High Court which was refused on 15 May 2008.
On 28 July 2008, the father filed a fresh application for final orders seeking contact with the child. He sought that contact be supervised at first, but eventually on an unsupervised basis on alternate weekends.
On 28 August 2008, Faulks DCJ dismissed that application. His Honour did so on the basis of application of the principles discussed in Rice & Asplund (1979) FLC 90-725 and the cases that followed it. Faulks DCJ was not satisfied that the father had established a sufficient change in circumstances to warrant reconsideration of the operative parenting orders. A cross-application by the mother for an order pursuant to s 118 (vexatious proceedings) of the Family Law Act 1975 (Cth) (“the Act”) to restrain the father from instituting further parenting proceedings in relation to the child without leave, was also dismissed.
The father appealed the orders of 28 August 2008 made by Faulks DCJ.
On 26 August 2009, the Full Court allowed that appeal (Marsden & Winch (2009) 42 Fam LR 1) against the orders made on

28 August 2008 which dismissed the father’s application of 28 July 2008. The matter was ordered to be remitted to a single judge of the Family Court. A comprehensive discussion of Rice & Asplund is contained in that judgment. It is sufficient for us to say that we endorse what was said in DL v W (2012) FLC 93-496 and Marsden v Winch (2009) 42 Fam LR 1, per Bryant CJ, Finn and Cronin JJ, where their Honours approved Warnick J’s approach to Rice & Asplund referred to in SPS & PLS (2008) FLC 93-363. In particular, that the rule is a manifestation of the ‘best interests’ principle and founded on the notion that continuous litigation over a child or children is generally not in their interests.
Prior to the hearing the father filed an application for final and interim orders on 1 September 2009 in which he sought a new hearing on the issue of him spending time with the child. This application superseded the father’s application for final orders filed on 28 July 2008.
The application, being essentially the new trial ordered by the Full Court on the father’s successful appeal against the orders of Faulks DCJ on 28 August 2008, was heard (on 4 & 5 February 2010) and dismissed by Watts J on

26 February 2010.

Reasons for judgment of Watts J of 26 February 2010

Referring to the Full Court’s [2009] reasons at [81], Watts J determined that, contrary to the view expressed by the father, he would, as a preliminary issue, hear and determine whether the evidence disclosed sufficient change in circumstances, the “Rice and Asplund” threshold, before embarking on a full hearing of the issue as to the parenting issues [8].
His Honour observed that the father relied on a report dated 18 September 2008 obtained from Dr S. His Honour also had before him an affidavit from Professor Y whose evidence was sought and relied on by the mother in resisting the father’s application before Watts J.
Watts J read, with the parties’ consent, the evidence and judgments from the past hearings to give context to the issues to be determined by him. Part of that included the report of Dr W, the single expert whose evidence was before Faulks DCJ in 2005. His Honour quoted extensively from that report, particularly where Dr W observed (at [24], Report dated 16 May 2005, Section H):
…I would note however that my understanding of this condition is that the risk of relapse is sufficiently high, particularly if [the father] continues to feel rather stressed, that I doubt that the Court could make a finding of no unacceptable risk. However I would defer to the opinion of a specialist in paraphilias in this regard…
His Honour noted at [25] that Dr W recommended two people who might be able to assist the father. His Honour further observed that the father cross-examined Dr W in the hearing before Faulks DCJ and that the transcript of that hearing demonstrated that Dr W suggested that the father needed evidence from an expert in the field who was fully informed of all the background.
Watts J said at [30] that:
So far as I know, he has never actually seen anybody with the type of experience in paraphilia that [Dr W] referred to …The expert and the report recommended by [Dr W] is exactly the type of expert and the type of report that [Professor Y] has suggested be obtained. …
His Honour returned to the issue of an expert report at [42] and he found that the father chose to proceed with the hearing on the basis that he did not have the kind of report recommended to him.
Turning then to the “significant changes” asserted by the father to have occurred and thus forming the basis for a reconsideration of the parenting issues, Watts J referred to the father’s assertion that he had not committed any offences for some years. His Honour rejected that assertion, observing that the finding by Faulks DCJ about the incident at the swimming pool was the subject of an unsuccessful special leave application and those findings were thus undisturbed. His Honour found at [65]:
The incident took place in January 2006. The importance of the timing of the incident is that it is evidence that the father, at a period of time when he says he was cured of his paraphilia because of the aversion effect of the breakdown of his marriage and his inability to see [the child], was not cured at all. The continuing denial by the father of his involvement in the [public swimming pool] incident is consistent with comments that [Dr Y] has made about serious concerns he has in respect of the father’s minimisation of his sexual behaviours in the past and the effect that that sexual behaviour may have had on others.
The father relied on a report of Associate Professor S before Watts J. His Honour observed that Dr S did not profess to have expertise in the realm of paraphilia. His Honour referred to Dr S’s evidence where he said that, in his opinion, the father was in “the recovery stage of his addiction” and he based that opinion on the absence of convictions for eight years.

Watts J also had a report of Dr Y who had extensive experience in the treatment of paraphilia.
Watts J referred to the unacceptable risk that Faulks DCJ found to exist, that is that without treatment, the father might engage in exhibitionistic conduct in front of the child’s friends and concluded that the evidence presented to him did not indicate that the father had treatment of the kind that would allow him to find that there had been shown a prima facie case of changed circumstances sufficient to embark on a further hearing of the parenting issues [108].
His Honour thus dismissed the father’s application.
The father filed an application on 8 July 2010 seeking final parenting orders. This is the application under consideration in this appeal. In support of that application, the father offered new evidence being a report from

Dr Z. Dr Z is a clinical and forensic psychologist who assessed the father on 28 June 2010, with him, in addition, completing several hours of psychometric testing. Dr Z made the following recommendations in her psychological report dated 8 December 2011:
16.Recommendations: On the basis of this assessment, taking into account the wide range of information available to me, including a perusal of the accompanying documentation and [the father’s] responses to the objective test measures, it is my opinion that even though he is considered to a moderate-high risk of reoffence, some contact with his [child] is appropriate. I believe that any recommendations about such contact should come from a position of [the child’s] best interests, which includes a primary focus on child protection. As such, it is appropriate and important that [the child] have some relationship with [the] father, although it is also important that [the child] be protected from harm and, therefore, the following recommendations are made in order to prioritise risk management in this case.
17.I note that [the child] has not seen [the] father for some three years and, therefore, it is important that any relationship be developed in a graduated and highly structured manner so that [the child] may re-engage and reconnect with [the] father safely. As such, the following recommendations are made:
·That [the father] be granted supervised contact visits with his [child]. These visits should occur at a contact centre on a fortnightly basis initially over a two hour period, with a view to increasing these contact visits to weekly if all goes well for [the child].
·I recommend that a structured programme be developed over a two year period that allows [the child] to spend increasing amounts of time with [the] father, although these visits should be supervised during that time by a person deemed acceptable to both parents.
·In the interim, [the father] should access specialist psychological treatment that is designed to:
oCement a detailed and comprehensive relapse prevention plan, and
oIdentify and address the problematic attachment and intimacy concerns that led him to developing a distorted and sexualised relationship with a young teenage girl.
·It would be appropriate for [the father] to return to Associate [Professor S] for such treatment or he might access this intervention with any accredited clinician with either the Commission for Children and Young People’s Child Sex Offender Counsellor Accreditation Scheme [website] or with the Australia and New Zealand Association for the Treatment of Sexual Abuse [website]. My Service may also assist [the father], although we are obviously based in Sydney [website].
·That if contact visits progress well for both parties and if [the father’s] progress in treatment is sound, he should be granted unsupervised access with his [child] and this could progress to include overnight stays.
·[The father] should also be granted permission to attend his [child’s] sporting events and special school occasions, which will obviously be held in public. This permission may be granted after a period of about six months when contact between [the father] and his [child] has been established to be progressing well.
·[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 in his [child’s] friends, it should only be in a public forum with other supervising adults present.
·That [the father] be able to return to specialise offence focussed treatment at any time he needs for support in managing his risks going forward, especially as [the child] ages.
·That contact between [the father] and his ex-wife be highly structured around their [child]. I note that it will probably be quite difficult for [the father’s] ex-wife to adjust to [the child] having contact with [the] father and, although this may cause her some stress, this is not a reason to prevent [the child] from having a relationship with [the] father. The use of a communication book may be appropriate to this end.

On 18 April 2011, Watts J ordered that the father’s application of 8 July 2010 be stood over until:
... he has received and filed reports from [Dr S] and his current treating clinician which indicate that the treatment recommended in the report by [Dr Z] of 6 July 2010 has been completed.
On 16 December 2011, the father filed an affidavit annexing a report and a relapse prevention plan from Mr V and an updated report and an addendum to the updated report from Dr Z. Mr V is a psychologist who, under supervision of Dr S and Dr Z, was consulted by the father on 12 occasions for treatment in relation to risk of reoffending. Essentially, Dr Z maintained the recommendations contained in her first report, other than she reduced the period of supervision to between 12 and 18 months “depending on [the child’s] progress”.
The father’s application was heard in April 2012 as was the mother’s application pursuant to s 118(1)(c) of the Act that the father be not permitted to file proceedings for parenting orders in relation to the child other than with the leave of the court. The mother sought summary dismissal of the father’s application filed on 8 July 2010.
Watts J dismissed the father’s application filed 8 July 2010 and made an order pursuant to s 118(1)(c) (or alternatively r 11.04(1) of the Family Law Rules 2004 (Cth) (“the rules”) preventing the father from bringing proceedings under the Act in relation to the child without leave of the court. Consequential orders pursuant to s 114(3) of the Act were made in support of the primary order which restrained parenting proceedings without leave.
It is useful at this juncture to set out the orders in relation to future proceedings which his Honour made:
15.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.
16.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].

Trial judge’s reasons

As to the re-litigation of the parenting proceedings and after referring to the litigation history and particularly the determination of 26 February 2010, the trial judge said:
29. 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 treatment) that would warrant a reopening of the case…
His Honour indicated at [30] that, notwithstanding that finding, he was still required to determine whether the father on all of the evidence then to be presented was able to satisfy the Rice & Asplund test.
Turning to the issues in the matter, his Honour considered the father’s health and risk of reoffending. His Honour referred to the report from Mr V, who said that the father had in the past rationalised and justified his behaviours, and now “actively challenges these beliefs….” [69].
Under the heading “is father an unacceptable risk” the trial judge noted that in her first report, Dr Z assessed the father as having a moderate to high risk of re-offending. After considering the treatment that the father had undergone with Mr V, his Honour noted that Dr Z re-assessed the father’s risk of offending.
His Honour said:
74. [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”.
75.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 [in]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.”
76.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.
His Honour continued:
77. So the father’s risk assessment, which was high to moderate, has lessened but is still one which exceeds moderate risk.
His Honour rejected at [82] the father’s submissions that Dr Z’s report confined the risk of re-offending to further exhibitionistic behaviour in front of adult women.
As to whether the father had, in the past, minimised his behaviour, his Honour found that, contrary to the father’s assertions, he had a problem with paraphilia from his early twenties and accepted at [89] the father’s evidence that these difficulties escalated after his mother’s death in 1996.
His Honour concluded:
91. 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.
A further issue considered by the trial judge was the mother’s mental state and the effect on her of the father’s behaviour. His Honour considered the evidence of the mother’s treating psychologist to the effect that the mother has two conditions; a general anxiety disorder and post-traumatic stress disorder which developed as a consequence of the mother’s beliefs about the father’s paraphilia and the effect of the litigation on her. His Honour noted that the psychologist regarded the mother’s anxiety disorder as being managed by medication in consultation with her general practitioner and with cognitive behaviour therapy.
His Honour said:
97. 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]. [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.
His Honour discussed the evidence of the mother’s general medical practitioner and accepted that the mother has taken anti-depressant medication at different times during the course of the parties’ litigation. In particular, she took anti-depressant medication in 2006 and 2007 and then she stopped taking medication for a period of six months commencing in 2008. Having again stopped taking anti-depressant medication in April 2010, following a history of panic attacks, by July 2011, she had resumed anti-depressant medication. In relation to the pattern of medication, his Honour said that it was interesting to note that the mother’s use of anti-depressants correlated to some degree with the pattern of the litigation, in particular, that during “lulls” in the litigation she has not taken it. At [102], his Honour accepted the general practitioner’s evidence:
… 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 (sic) risk of a major depressive disorder.
His Honour considered the frequency of the father’s overseas travel and concluded that it was highly likely that any time with the child would be significantly disrupted by his travel [108].
His Honour, considering the provisions of s 60CC(2) of the Act, found that, if possible, it would be to the child’s benefit to have the opportunity to develop a meaningful relationship with the father. However, at [116], his Honour said that the issue for determination is whether other factors militate against that.
His Honour referred to the finding of Faulks DCJ in deciding to allow no contact between the father and the child because of the negative impact that even supervised contact would have on the mother and said that the evidence before him does not reveal any change. He found that the negative impact has now become “decidedly worse” and referred to the mother’s diagnosed conditions [117].
Further, his Honour, again referring to the finding of Faulks DCJ that it was “more likely than not” that the father may engage in “exhibitionist behaviour” in front of the child’s friends, said that he could not find that that risk had abated. His Honour quoted from Dr Z who said:
118.…[the father] should not be able to have [the child] and [the child’s] friends stay at his house at any time. Rather, if he is to be involved with his[child’s] friends, it should only be in a public forum with other supervising adults present.
His Honour observed that the mother’s case before him was that she would resist giving any facilitation or encouragement to the relationship between the father and the child. His Honour accepted that her reasons for that position were genuine. He said:
128.…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 am unable to say that the mother’s genuine fears are unreasonably held.
His Honour found that the likely effect of making the orders sought by the father would be “dire” for the mother and said:
129. …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 circumstance 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].
His Honour concluded at [147] that the father had undertaken the treatment recommended and further had obtained a forensic assessment and concluded that these actions amounted to a significant change in circumstances sufficient to satisfy the test in Rice & Asplund.
His Honour continued:
148. 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.
149. 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.
The trial judge concluded:
151. 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.
His Honour then turned to the mother’s application that the father be restrained from filing any further parenting applications without leave of the court. After considering the power of the court to make such an order, his Honour referred to Bennett & Bennett (2001) FLC 93-088 and rejected s 68B of the Act (injunctions in relation to a child) as a source of power. As his Honour indicated, the fundamental right of access to courts required, in the context of a court exercising jurisdiction under the Act, an “unambiguously clear” legislative provision. On the basis that the Full Court rejected s 68B as amounting to such a provision, his Honour observed that s 67ZC (orders relating to the welfare of children) would not provide a source of power for an order of this type.
Thus, at [156], his Honour found:
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”).
Having referred to s 118 (which is set out later in these reasons) his Honour set out r 11.04(1). Rule 11.04(1) provided:
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.
As his Honour indicated, the words “frivolous” and “vexatious” are not defined in the Act. In relation to the rules, the explanatory guide provides the following explanation of those words:
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).
His Honour was satisfied that the words “frivolous” and “vexatious” are related in the sense that a frivolous application is a vexatious application.
His Honour then referred to the Oxford Dictionary definition of the word “to vex” which he summarised as being “to cause distress, whilst in its more modern meaning is to make somebody feel annoyed, frustrated, worried, irritated or unhappy” [163]. Having determined that the father’s desire to spend time with his child was not frivolous, his Honour turned his attention to whether the proceedings initiated by the father were vexatious. His Honour cited Attorney General (NSW)v Wentworth (1988) 14 NSWLR 481, at [491], where in the context of the then s 84 of the Supreme Court Act 1970 (NSW), Roden J set out a test for determining whether proceedings are vexatious. At [168], his Honour said:
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.
…
His Honour said that, in his view, the test set out by Roden J is not exhaustive. After referring to the terms of s 118(1)(c ) of the Act, his Honour said:
172. 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.
173. 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.
174. 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 effect 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.
As an alternative source of power by which to make the orders, his Honour relied on r 11.04(1).
His Honour explained his decision to make the order sought by the mother thus:
178.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 [the] 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.
His Honour thus found he had the power to make the order sought by the mother. He made a consequential order restraining the father from serving any application on the mother until the court has given leave.

The appeal

The father relied on five grounds of appeal.
Ground 1 provided:
1. His Honour has erred in not ordering direct contact between the father and [child], not even under supervision, in spite of a finding of no unacceptable risk. This order has denied the father and [child] their right to a meaningful relationship with each other under the Family Law Act.

In his written submissions filed 22 February 2013, the father argued that despite “being found by all experts and judges in this matter not to be an unacceptable risk” and that “No judge or expert has determined I am a risk of harm to my [child]”, to be then denied contact with his child was an error.
In oral submissions, the father contended that the trial judge failed to properly apply the provisions of s 60CC of the Act in that he failed to give proper account to the evidence that the father posed no threat of unacceptable risk to the child.
It is true that there is no finding either by Watts J or Faulks DCJ that the father posed an unacceptable risk of harm to his child. However, his Honour the trial judge found that if the father behaved as he had in the past it would pose a risk for his child. It is clear from the reasons of the trial judge that the risk of harm was the father’s conduct to or in front of the child’s friends.
In our view, his Honour correctly identified the risk and the nature of it. It was a finding well open to him on the evidence.
The father has not made out this ground of appeal.
Grounds 2 and 4 essentially argue that the trial judge erred in the exercise of his discretion and in findings of fact. They were argued together by the father during the appeal and we will consider them together.
2. His Honour has erred in his finding the father’s circumstance have not significantly changed in his favour and the risk of reoffending his previous “paraphilia” behaviour has not been reduced with the forensic testing and treatment received and the formulation and implementation of a Relapse Prevention Plan. These findings are contrary to the expert evidence.
4. His Honours many errors in fact and finding has led to erroneous judgment and miscarried justice
In his submissions the father relied on the evidence of Dr Z and Mr V and argued that the trial judge failed to accord their evidence sufficient weight. Further, he contended that while Dr Z found his “static risk” to be high, she also found it to have been reduced by reference to the lack of further offending and her finding that with each year of no offences, the risk further reduces.
At page 2 of her report of 8 December 2011 Dr Z said:
Static and Historical Risk Factors:
8. The Static-99, developed by Hanson and Harris (2000), assesses risk of sexual or violent recidivism (as defined by new convictions), using static or historical variable. The instrument has been developed based on group relating to offenders and therefore does not relate to personal risk for any one offender. Rather it can be considered as indicating a general potential for sexual or violent reoffending based on the nature of past offending. [The father’s] score of six on this measure places him in the High risk category, based on the following variables:
·Three previous charges for sexual offences,
·Four or more prior sentencing dates,
·Convictions for non-contact sexual offences,
·Unrelated victims,
·Stranger victims.
…
10. It is noted that, prior to the present offences, [the father] was seemingly at liberty in the community for a four to eight year period without any reconvictions for sexual offences, depending on whether you accept that the [public swimming pool] incident was an act of public masturbation or not. This entitles him to a reduction in his risk rating according to the Static-99. Assuming, he has been offence-free for eight years, [the father’s] risk would reduce to 9.4% over five years and 17.8% over ten years. If the ]public swimming pool] incident did occur, then [the father] has been offence free for only four years and this would reduce his risk on the Static-99 to 13.1% over five years and 23.7% over ten years.
After discussing “dynamic risk factors” which, Dr Z’s report notes are those relating to the offender’s current psychological state and provide an index of current live risk that can change over time, she continued at page 3 of her report to say:
14. In sum, taking into account both static and dynamic risks, it is my opinion that [the father] poses a moderate-high risk of reoffence. In a criminal sense, this risk is most likely associated with similar exhibitionistic or voyeuristic behaviours and most probably targeted at young adult women. Further, it is suggested that [the father’s] risk will increase under periods of significant personal stress, which would also include relationship problems or depressed mood. At these times, he will demonstrate this increased risk by isolating himself, not communicating in relationships, spending more time alone, masturbating more often, looking at women more often and using catalogues and the like as pornography.
The father placed significant emphasis on Dr Z’s comment at page 6 of her report where she said:
…Static assessments of risk are based on historical factors and are, therefore, by definition unchangeable. As such, [the father’s] assessment of risk according to the Static-99 (that is, that he is high risk) will not change. However, the provision of offence focussed intervention that addresses criminogenic needs may ameliorate dynamic risks and this is important. Based on the report of [Mr V], it appears that psychological treatment with [the father] through 2011 has addressed some of those dynamic risks (including improving his coping skills, ability to challenge offence-focussed thinking, such as minimisations, and understanding the attachment and intimacy concerns that contributed to his inappropriate and abusive behaviour). To this end, 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...
While not a passage referred to by the father in his argument, it is nevertheless instructive to include Dr Z’s opinion at page 7 of her report:
In my original report, although I raised a number of concerns in relation to [the father] and his risk for further inappropriate or sexually abusive behaviour, I opined that this risk did not appear to relate to his [child] and, therefore, I recommended that he be granted supervised contact with [the child] and that a two year programme be developed whereby he can have increasing contact with his [child] that progresses to unsupervised and then overnight stays. I have no information available to me in relation to the present report that would change my previous assessment that there is no justifiable reason in terms of risk that [the father] should not have contact with his [child] on an supervised basis initially. … However, even though [the father] allegedly has greater insight into the antecedents to his inappropriate behaviour, I do not believe that 12 sessions of treatment is sufficient to fully address these underlying issues and, therefore, my recommendation that [the child’s] friends should not stay over in the home remains. I do not believe that this will have a significant deleterious effect on [the father’s] capacity to develop a bond with his [child], as his priority is [the child] not [the child’s] friends and he may engage with his [child] and [the child’s] friends in public places and on outings.
In Dr Z’s oral evidence she was taken to her report in which she reviewed the father’s risk based on the interventions with Mr V and where it was put to her that she said:
To this end I would be prepared to review [the father’s] dynamic risk assessment to be in the moderate range. This would bring his overall level of risk down somewhat to the moderate range.
(Transcript 2 April 2012, p 66, lines 3-5)
Counsel for the mother then said:
Now, do you mean towards the moderate range?---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.
Right?---So I couldn’t reduce it further than that.
I see?---So it (sic) was reducing it towards the moderate range, not into the moderate range?---Well, it’s - yes, it’s around that. I’m comfortable with that.
(Transcript 2 April 2012, p 66, lines 7-15)
Dr Z was asked to consider a comment by Professor Y:
It is a well-established phenomenon that sex offenders, particularly serial sex offenders, often develop their technique as time goes on. They get cleverer at evading detection, not leaving clues behind. That is well known.
….
Absence of further convictions is not a good indicator that a person has ceased to offend.
Would you agree with that?---It’s the only indicator we have.
(Transcript 2 April 2012, p 68, lines 32-43)
Dr Z continued:
…I don’t agree that it’s not a good indicator. I think that certainly people can continue to re-offend and not be convicted, but I think it is the only indicator we have that has any objectivity.
(Transcript 2 April 2012, p 69, line 27-29)
In essence, the father argued that the trial judge erred in not finding that circumstances had changed sufficiently to reopen the parenting issues because the trial judge failed to appreciate the effect to Dr Z’s evidence about the reduction in the father’s risk of recidivism. He further contended that had the trial judge fully understood it, he could not have come to the conclusion he did.
In addition, the father argued that the trial judge erred in that he failed to appreciate that Dr Z’s assessment of the father’s risk was in relation to inappropriate behaviour towards adult women, not girls.
Dealing with this second argument first, although it was a position with which the father tried to have Dr Z agree, we do not see her evidence as constituting such an agreement.
The father said to Dr Z:
…but the dynamic factors can change. I guess what I’m asking you to provide the court is some help in clarifying what a moderate risk actually means. I mean, we need some perspective, I believe. Number one, if it’s 10 to 20, even 30 per cent chance of re-offence but we also need perspective of what are we talking about?---Correct
That I might expose myself to adult women frankly?---Correct.
That was my previous offence. So we’re not saying that there’s a 10 to

20 per cent chance I would harm my child; that there’s a 10 to 20 per cent chance I might expose myself to adult women?---So in paragraph 99 and 100 of my original report I speak to what that risk pertains to.
Yes. All right. I know the court is concerned when they hear the words “moderate to high risk”. I just wanted to put it in perspective of actual risk to my child and what the offence were [sic] talking about actually was if I was to, in fact, re-offend?---Well, in paragraph 100 I put that I do not believe that your risk would pertain specifically to your [child]
Yes. Okay. Moving on from that---
…
His Honour: Just so I’m clear – but other unrelated teenage girls?---Correct. ...
(Transcript 2 April 2012, p 53, line 30- p 54, line 3)
In her first report of 6 July 2012 at [100], Dr Z said:
Psychologically speaking, there is also a risk of him developing an inappropriate attachment to another adolescent female who perhaps looks up to him and makes him feel good about himself. It is less clear whether [the father] would be a risk of contact offending in this case, however, as he seems to have quite strong moral prohibitions against this and would probably extricate himself from any dangerous situation before offending. I also believe that this risk would not pertain specifically to his [child] but would more likely be related to another unrelated teenage girl with whom he spends a prolonged period of time and develops a strong connection with. Again, [the father] would demonstrate this risk by spending increasing amounts of time with the object of his affection, seeking out her company and more likely in isolation, perhaps flirting with her or showing her his affection through taking her on special outings or buying her things and the like. Therefore in both cases, [the father’s] risk would be manifest through a period of warning that would, to some extent, be obvious to others around him.
Thus we reject the father’s submission that the trial judge failed to appreciate that his risk of reoffending was in relation to adult women, because clearly the evidence was not to that effect. His Honour’s findings are consistent with the very clear and, we suggest, powerful evidence to the contrary.
As to the trial judge’s appreciation of the risk assessment of Dr Z, the father introduced a somewhat mathematical approach to his risk of reoffending to demonstrate that the reduction in his risk level was such that his Honour could not have found a lack of change had he understood Dr Z’s evidence.
The assessment of the father’s risk of reoffending and the consequences to the child and the mother of him doing so was a matter entirely for the trial judge. It is important to observe that simply because other findings of fact may also have been open on the evidence before the trial judge does not demonstrate that a finding of fact complained of was thus not open or available to his Honour. That is not the test. The test is whether the finding of fact or findings of fact material to the exercise of discretion have been shown to have not been reasonably open to the trial judge; see Edwards v Noble (1971) 125 CLR 296 at 304. It will be immediately apparent that the test thus raised is one which is not lightly or readily satisfied.
We hasten to add that, in our view, not only were his Honour’s findings about the risk of the father’s reoffending and the consequences if he did open to him but, in our opinion, the evidence compelled such a finding.
It follows that the father has failed to make out this ground of appeal.
By ground 3, the father argued that:
3. His Honour erred in not finding the mother’s fears are unreasonably held.
In support of this contention, the father relied on a finding made by Faulks DCJ in 2006 when he said in his reasons
77. The father complained (with some justification) that the mother had shown some degree of obsession herself in her physical examinations of [the child’s] genitals and body when she returned from time with her father. This was an excessive response but illustrates the effect contact has had on the mother and could have. That in turn may have vicariously unfortunate effects on [the child]. It would not be reasonable to abandon time that a child spends with one parent because the other parent responds to that time unreasonably or irrationally. However when the other parent’s conduct has been responsible for the concerns of the parent (even if those concerns may not be a proportionate response) it is reasonable to at least take that consequence into account.
The father further argued that this finding, taken with Dr W’s view expressed in his report in 2005 that the mother’s anxiety was not objectively based, demonstrated that her expressed fears were unreasonably held.
In her second report, dated 10 February 2012, Ms G, the mother’s treating psychologist said at page 3:
[The mother] presents with intense anxiety in response to triggers related to [the father]. She experiences panic attacks, sleep disturbance, hyperventilation, dissociation, psychomotor agitation, hyper-vigilance, loss of concentration etc. She talks of recurrent and intrusive imagery associated with [the father’s] potential harm to the child. Rightly or wrongly, she perceives him as an unremitting and insidious threat to the wellbeing of the child. She perceives helplessness over the situation. Despite [the father’s] involvement in treatment, [the mother] maintains a stance and tightly held view that [the father] poses a risk to the child and cannot be trusted or properly contained.
She continued:
[The mother] cannot be convinced of [the child’s] safety with [the father] or of his ability to change. It is unlikely that she would be convinced of approaching or dealing with [the father] for therapeutic resolve. Her prognosis is poor in this regard.
The father asked Ms G questions about her reports and opinions in the trial before Watts J.
The following exchange occurred:
His Honour: The second part of the question was, and do you want to comment upon this –[the father] is putting to you that the appropriate way of addressing your patient’s problem is to help her identify her fears as being unreasonable and attempting to apply some therapy that would then assist her to deal with unreasonable fears ?---There would be the assumption there, your Honour, that the fears are unreasonable, and people who present with anxiety disorders, particularly trauma influenced style symptoms, could probably say to you, my anxiety of my trauma seems unreasonable, it doesn’t seem logical, but it’s very real to them.
(Transcript 3 April 2012, p 131, line 18-25)
The father suggested that the evidence of Dr Z, Mr V and his own evidence should have led to his Honour finding that the mother’s fears were unreasonable.
We observe that the father does not contend that the mother’s fears were not genuine but that the trial judge was in error in finding that they were reasonably held. In advancing this argument, the father scrupulously avoided dealing with his Honour’s findings at [128] and [91]. In those paragraphs, his Honour accepts the mother’s evidence about what she heard him say to a psychologist during therapy in 1988 in preference to the father’s absolute denial that his exhibitionist/masturbatory behaviour predated 1996. Contrary to the father’s denials, the trial judge was satisfied that the father told a psychologist (in the presence of the mother) that he:
83.…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.
Again, notwithstanding the father’s denials, the trial judge accepted evidence given by the mother of her own experience of the father which corroborated the notion that the father’s problematic exhibitionist behaviour predated his mother passing away [84].
Although, as his Honour explained, the father’s lack of candour, in a fact finding sense, was of little relevance, it made it difficult for the mother to accept that treatment based on a flawed history could truly moderate the risk that he might behave like that to or in the child’s presence. As we understand it, although his Honour was able to accept the expert evidence which took into account the probability that the father had minimised his earlier aberrant behaviour and thus conclude the father did not pose an unacceptable risk to the child, because of the mother’s own experiences of the father and his lack of candour in relation to conduct at the heart of these proceedings, it was not unreasonable that the mother maintained the views about him which she held.
Again, we note that his Honour’s finding in this regard was one of fact and was a finding that was well open to him to make. That the father contended for a different finding is not to the point. The trial judge made no error in so finding and the father has failed to make good this ground of appeal.
By ground 5, the father argued that:
5. His Honour’s finding the father’s application “vexatious” is in error and His Honour’s order to restrict the father’s access to the Family court has denied the father his Common Law and Constitutional right to procedural fairness and natural justice.
Section 118 of the Act operative at the time of the trial judge’s determination provided:
Frivolous or vexatious proceedings
(1) 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.
(2) A court may discharge or vary an order made by that court under paragraph (1)(c).

The policy considerations behind the enactment of s 118 were identified in Zabaneh & Zabaneh (1986) FLC 91-766. In that case, Evatt CJ (with whom Fogarty and Renaud JJ agreed) said at [75,586]:
(The purpose of these provisions) “...is to prevent multifarious overlapping applications between the parties, which amount in essence to a harassment of the other party, and an abuse of the process of the Court, and which involve enormous expense for both the parties and the legal aid office”.
The effect of s 118 can be succinctly stated; it restricts a person’s right to commence proceedings under the Act.
The Full Court in Bennett & Bennett (2001) FLC 93-088 at [42] accepted what Kirby J said Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 at [323]:
…it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction.
Kirby J further said at [159] in Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256:
The common law has long been defensive of the right that all persons enjoy to have access to the courts and not to be denied such access save in the most exceptional of circumstances (251). So much is inherent in the rule of law which is a foundation of Australia’s legal system, implied in the Constitution.
The Full Court in Bennett at [33] enunciated two important principles to be considered when abrogating from this right. First, if a fundamental common law right or privilege is to be modified by statute, then the statute should make that intention unambiguously clear; and, secondly the right of a citizen to unimpeded access to the courts is a fundamental common law right.
The language of s 118 makes it clear that Parliament intended the court to have, in defined circumstances, the power to deprive a litigant of the right to have access to the courts and only in accordance with the provisions of s 118.
It is a course that should be reserved for the clearest of cases (see Vlug and Poulos (1997) FLC 92-778). At this point it is appropriate to express our disagreement with his Honour’s sentiment at [176]. At [176], the trial judge said:
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.
As we will explain, an order pursuant to s 118 is a step not to be undertaken lightly and deprives a person subject to such an order of the same level of access to the Court as enjoyed by others.
The Full Court in Bennett further said:
47. It seems to us that the arguments against the proposition that s 68B(1) or (2) authorise the granting of an injunction restraining the institution of proceedings without leave in relation to a child, become more compelling when regard is had to the fact that in s 118 of the Family Law Act the Parliament has clearly defined the circumstances in and terms on which the court may order that a person who has instituted proceedings shall not, without leave, institute further proceedings.
Bennett was considered recently in Theophane & Hunt [2013] FamCAFC 68. In Theophane & Hunt, the trial judge relied upon Division 12A of the Act for power to restrain the parties from commencing parenting proceedings without leave. As their Honours explained, Division 12A did not empower the trial judge to make the order. Consistent with what was said in Bennett, at [47], that power can only be exercised in accordance with the limitations contained in the statute directed to that specific subject matter. Because his Honour relied on r 11.04(1) as an alternate source of power to that in s 118(1)(c), this is a matter of some significance.
Section 123 of the Act confers power on the judges of the Family Court to make rules for the Family Court and (excluding the Federal Circuit Court) any other court exercising jurisdiction under the Act, for and in relation to practice and procedure (and incidental thereto) or necessary or convenient for the conduct of court business (Harrington v Lowe (1996) 190 CLR 311 at [324]). Rule 11.04(1) is such a rule.
In Harrington v Lowe, the High Court at [324-325] held that the power conferred by s 123:
… does not authorise the making of regulations [or rules] which
(i)vary or depart from, and thus are inconsistent with, the positive provisions of the Act …, or
(ii)go beyond the field of operations marked out by the Act, in particular, beyond the exercise of federal jurisdiction by courts doing so in respect of matters arising under the Act. [footnotes omitted]
It follows, that it would not be a valid exercise of the rulemaking power for r 11.04(1) to vary, depart from or operate in a manner inconsistent with s 118.
The interplay between s 118 and r 11.04(1) was considered in DJC and SJS and Child Representative (2006) 34 Fam LR 329 and JB and BW [2006] FamCA 639. We observe that whether or not r 11.04(1) was a valid exercise of the rule making power is not discussed and thus these decisions proceed on the basis that it was.
In DJC and SJS the Full Court said at [53]:
It can be seen that as a necessary condition precedent to making any order under s 118 or Rule 11.04 restraining a party from filing or continuing an application it is necessary for the Court first to determine that there are proceedings before it which are frivolous or vexatious and to dismiss those proceedings before then making the order restraining the commencement of further proceedings.
And at [54] the Full Court further said that absent a finding that the current application was either vexatious or frivolous:
…[I]t would be inappropriate to make any order under s 118 or under Rule 11.04. It is clear the parliament has provided in s 118 a clear legislative framework of circumstances in which the Court may order a person shall not file further proceedings without the leave of the Court which were not satisfied in this instance (see Bennett v Bennett (2001) FLC 93-088 at 88,593).
However, in JB and BW, a differently constituted Full Court said at [70]:
There are significant differences in the circumstances in which the power is enlivened either under s 118 or under the Rules. The s 118 power is enlivened if there are proceedings before the Court that the Court is satisfied are frivolous and vexatious and those proceedings are dismissed. If an application is then made by a party to the proceedings, seeking an order restraining the other party from commencing any further proceedings without leave of the Court, the Court may make the order. The power under the Rules may be exercised by the Court on its own initiative or on an application of a party. The Court is required to be satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process.
As can be seen, the Full Court in JB and BW gave r 11.04 a wider reach than that given in DJC and SJS. Although we cannot be certain, it would appear that the narrower view expressed in DJC and SJS reflects an interpretation designed to ensure that the rule did not exceed power. In circumstances where r 11.04 has been repealed; little argument was presented on the point and, as we will discuss, his Honour’s interpretation of the word “vexatious” will not be upheld, we need not take this discussion any further.
A finding that proceedings are “vexatious” is thus a precondition to any order under s 118 and r 11.04. How then are proceedings to be characterised as “vexatious”?
In Batistatos the High Court considered what amounted to “abuse of process”. The plurality (Gleeson CJ, Gummow, Hayne and Crennan JJ) quoted at [10] Lord Blackburn in Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 (where he said at [220-221]:
[F]rom early times (I rather think, though I have not looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing — the Court had the right to protect itself against such an abuse; but that was not done upon demurrer, or upon the record, or upon the verdict of a jury or evidence taken in that way, but it was done by the Court informing its conscience upon affidavits, and by a summary order to stay the action which was brought under such circumstances as to be an abuse of the process of the Court; and in a proper case they did stay the action.
The plurality continued:
[12] Several other points are to be made respecting that statement in Metropolitan Bank. The first is that Lord Blackburn treated vexatious process as synonymous with, or at least an instance of, abuse of process. Secondly, the issues to be considered go beyond a question as to whether the claim or defence in question is bad in law; the demurrer was developed to deal with that situation. Thirdly, and as later emphasised in this Court in authorities to which reference has already been made in these reasons, Lord Blackburn indicated that the power existed to enable the court to protect itself from abuse of its process thereby safeguarding the administration of justice. That purpose may transcend the interest of any particular party to the litigation.
That the term “abuse of process” includes proceedings brought for an improper purpose or which are “frivolous, vexatious or oppressive” appears to be well settled. See Ridgeway v The Queen (1995) 184 CLR 19 where Gaudron J said at [74] to[75]:
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are "frivolous, vexatious or oppressive". This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment’.”
The plurality in Batistatos continued at page 267 at [15]:
…To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious…
In Attorney-General v Wentworth Roden J said at [487]:
Meaning of “vexatious”
This is obviously a critical term, and can hardly be regarded as mere

surplusage. If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings”,

means something different from “habitually and persistently and without

any reasonable ground institutes legal proceedings”, then relevant vexation

cannot be found simply in the habitual or persistent manner in which legal

proceedings are instituted, in a lack of reasonable ground for their

institution, or in a combination of those factors. Something more is required. Similarly, the use of the words “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground.
His Honour continued:
A subjective element, such as malice, lack of bona fides, or ulterior
motive, seems to be both appropriate and necessary to give significance to
the term “vexatious” within the context of s 84(1). It provides the required
“something more” than is conveyed by the other words in the section, and it is consistent with legal proceedings instituted either with or without
reasonable ground. If I were unaided by judicial authority, I would opt for
such a construction here. I appreciate that, isolated from its context, the
expression “vexatious legal proceedings” could mean “legal proceedings
which vex”, irrespective of the motives of the person instituting them. A construction requiring a purely objective test might also be applied to the word when used in the expression “vexatious litigant”, which also appears in the section, although it would sit less happily there. The construction
required for present purposes, however, is a construction within the context of the section as a whole; and for the reasons stated, I would, on first
impression, opt for the inclusion of a subjective element.
We observe that while Roden J was concerned with the meaning of these words within the context of a difference statute, that difference is not material to our consideration. We agree with his Honour’s construction of the word “vexatious” and, in particular his rejection of the meaning being “legal proceedings which vex”.
Roden J then concluded at [491] with the test which is set out at [81] of these reasons.
In Vlug & Poulos, the Full Court considered an appeal by a party against an order made pursuant to s 118.
In considering the scope of the power conferred by the section, the Court said at p 84,603:
There was, in our view, no power conferred by s 118 to impose either of the prohibitions contained in the order made by Moss J. This is because the power in s 118 to order that a person shall not, institute further proceedings without leave can only, in our view, be exercised where the court has already dismissed or is simultaneously dismissing proceedings which it was satisfied are frivolous or vexatious instituted by the person (against whom the order is to be made). Moss J in this case had dismissed the husband's applications filed on 9 July 1996 and 29 July 1996 (both of which, including the reasons for their dismissal, have been discussed above), but he had not done so on the basis that either application was frivolous or vexatious.
The Court continued:
… the court must be satisfied before it exercises the power under s 118(1)(c) to prevent the institution of further proceedings, the proceedings which are then before it (or have just been dismissed by it) are frivolous or vexatious.
Although the father has filed and prosecuted numerous applications in the court, not all of which have been successful, none has been dismissed as being either frivolous or vexatious. Similarly, the proceedings before the trial judge were unsuccessful but his Honour’s reasons do not suggest that the proceedings were vexatious.
His Honour was in error in making the order pursuant to s 118(1)(c) or in the alternative r 11.04(1).
The father has made out this ground of appeal.
As the appeal has succeeded on a limited point, we propose to set aside his Honour’s orders made pursuant to s 118(1)(c), r 11.04(1) and s 114(3) and otherwise dismiss the appeal. Given the reasons for our decision on this ground, we see no point in remitting the issue to be re-determined by another trial judge.

Costs

As is usual, we sought submissions from the parties on the question of costs on the appeal. The father argued that in the event the appeal was successful and the court determined that no order for costs should be made, he would seek a costs certificate for the appeal and any re-hearing. Given the limited basis on which the father has succeeded, we are of the view that no order for costs should be made as between the parties and nor should a costs certificate be ordered in relation to the appeal. The major thrust of the father’s appeal was in relation to the trial judge’s determination as to whether the father had demonstrated a change of circumstances sufficient to warrant a further hearing. On that, he failed and we will not order a costs certificate.

I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace & Ryan JJ) delivered on 12 November 2013.

Associate:

Date: 12 November 2013