Prantage and Prantage
[2014] FamCA 563
•23 July 2014
FAMILY COURT OF AUSTRALIA
| PRANTAGE & PRANTAGE | [2014] FamCA 563 |
FAMILY LAW – CHILDREN – application to change parenting orders – 118(1)(c) of the Family Law Act 1975 – Bias alleged – Costs.
Family Law Act 1975 (Cth) s 118(1)(c)
Family Violence Protection Act 2008 (Vic) ss 70, 71
Bolitho and Cohen (2005) 33 Fam LR 471
Derek and Derek [2005] FamCA 356
DJC v SJS and Another (2005) 34 Fam LR 329
DL v W [2012] FamCAFC 5
Kettle & Green (Unreported, Family Court of Australia, 2 April 2008)
Oscar & Traynor [2008] FamCAFC 158
| Prantage & Prantage (2013) 49 Fam LR 197 Prantage & Prantage [2014] FamCA 541 Re: H & Ors (1996) 1 All ER 1 SPS & PLS (2008) 217 FLR 164 |
| APPLICANT: | Mr Prantage |
| RESPONDENT: | Ms Prantage |
| FILE NUMBER: | MLC | 11263 | of | 2008 |
| DATE DELIVERED: | 23 July 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 22 – 24, 27 May 2013, 27 March 2014, 21 May 2014, 17 July 2014 |
| LAST WRITTEN SUBMISSION: | 16 June 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Ms Smallwood |
| SOLICITOR FOR THE RESPONDENT: | Lampe Family Lawyers |
Orders
The father’s application filed 27 December 2012 be and is hereby dismissed.
Pursuant to section 118(1)(c) of the Family Law Act 1975 the applicant father be restrained from instituting proceedings under the Family Law Act for parenting orders without leave of the Court.
Any party wishing to make an application for costs in this proceeding do so by written submission filed and served not later than 14 days hence and any party against whom costs are sought file and serve any submissions in response in writing within 14 days of service upon them of the other party’s submissions.
The submissions as to costs are to be not longer than four single sided pages of double spaced text in a font not smaller than 13 point.
The father pay the costs of the attendance by Dr NZ at court in May 2013 to give evidence fixed in the sum of $1,800 unless otherwise agreed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Prantage & Prantage (No 2) 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 MELBOURNE |
FILE NUMBER: MLC 11263 of 2008
| Mr Prantage |
Applicant
And
| Ms Prantage |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern M born … 1998 (15 years old) and D born … 2002 (12 years old) and I will decide three issues.
First, whether the father should be able to re-litigate parenting arrangements which were concluded by final orders sought, and made, by consent by Cronin J on 2 March 2012 when the father was represented by lawyers. The final parenting orders provided for the mother to have sole parental responsibility for the children, for the children to live with the mother and to see the father only in the course of therapy with Dr NZ for a few hours once a month. The father now seeks to reverse the parenting arrangements so that he has sole parental responsibility and the children reside with him. I will determine whether the matters relied upon by the father are of sufficient importance to justify a further round of litigation having regard to the best interests of the children as the paramount consideration.
Second, the mother seeks that the father be enjoined from instituting further parenting proceedings without first obtaining leave of the Court to do so. This application is to be determined in accordance with s 118(1)(c) of the Family Law Act 1975 (Cth) (‘the Act’), as it stood when the father commenced the current proceedings. If I am satisfied that the father’s application is “frivolous or vexatious” I can dismiss it, make orders about costs and, if appropriate, make the injunction sought by the mother.
Third, whether there are circumstances which justify me making an order that one party pay some or all of the other party’s costs of these proceedings.
The children have been the subject of intense litigation in this court since the parents separated on 16 November 2008. Child related matters and financial issues have generated numerous hearings including a number of interim hearings, a final hearing, contravention proceedings, child support proceedings, two successful appeals and, as recently as last week, urgent oral applications by each party. The Full Court described the proceedings as “protracted and ruinously expensive litigation”[1], and that was prior to the current round of proceedings which are instituted by the father. There are also the competing applications for final alteration of property interests which await hearing by way of a re-trial and are listed to commence before me on 21 October 2014.
[1] Prantage & Prantage (2013) 49 Fam LR 197 [1].
After seven days of hearing, written submissions, argument and cross examination of all witness who were required for cross examination, I have concluded that the father has not demonstrated any change in previous circumstances or any new circumstance of such significance that the best interests of the children require that their parenting arrangements be re-litigated between the parents or re-visited by this court at this time. I have also concluded that the father’s current application is vexatious, because it is brought recklessly and without proper foundation, and that he ought to be restrained from bringing further parenting applications unless he first obtains leave of a judge of this court to do so.
My conclusions and determinations require a high degree of context which, hopefully, is contained in the reasons which follow.
The structure of these reasons will be:-
a)Orders sought by the parties;
b)Conduct of these proceedings and issues for determination;
c)Documents and evidence relied upon by the parties;
d)Standard of proof and findings of fact;
e)My impression of the witness who were cross examined;
f)Legal principles:
i)The rule in Rice and Asplund;
ii)Injunction under s 118(1)(c);
g)The relevant history, chronologically and by reference to expert evidence and determinations including:-
i)The parents’ separation on 16 November 2008
ii)Federal Magistrates’ Court proceedings in 2008;
iii)Family Court proceedings in 2010;
iv)Psychiatric assessment of the parents by Dr W in February 2009;
v)Family assessment by Mr O in February 2009;
vi)Report by the mother’s psychologist, Dr F, in April 2010;
vii)Orders by Cronin J on 24 December 2010 as to final alteration of property interests (subsequently set aside on appeal); child support and interim parenting orders;
viii)Dr NZ’s report dated 30 May 2011;
ix)Orders by Cronin J made 22 June 2011 changing interim residence of children to mother;
x)Father’s contravention of injunctions and the penalty imposed by Cronin J on 5 September 2011;
xi)Final parenting order made, by consent, by Cronin J on 2 March 2012;
xii)Orders by Cronin J made 10 August 2012 awarding the mother costs on an indemnity basis and the father’s appeal;
xiii)BS reports on supervised time in 2013;
xiv)Dr NZ’s report dated 10 May 2013, oral evidence and cross examination.
h)Discussion about the best interests of the children and my conclusion on whether there has been a sufficient change in circumstances;
i)Discussion about vexatious and frivolous and conclusion on injunctive relief sought by mother;
j)Discussion and directions as to further hearing in relation to costs;
k)Conclusion as to the practical effect of this decision;
l)Future conduct of the matter.
Orders Sought
By an application filed on 27 December 2012 and a case summary filed on 17 May 2013 the father seeks orders in the following terms:
1.That all previous parenting orders be discharged due to changed circumstances.
2.That the Husband/Father has sole parental responsibility for the children of the marriage M born in 1998 and D born in 2002.
3.That the said children live with the Husband.
4.That the Husband notify the wife of all major long term decisions concerning the health and education for the children by sending a letter by ordinary pre-paid post care of the E Property.
5.That the said children spend one weekend per fortnight and fifty percent (50 per cent) of the school holidays with the Wife Ms Prantage or as directed by the Honourable Court.
6.That the Wife by herself her servants and agents, such people to specifically include the Wife’s parents Mr OS and Ms OS the Wife’s sister and her husband Mr K and Ms K, be and is hereby restrained from communicating or attempting to communicate with either or both of the children in any manner including but not limited to telephone, text messages, email, Facebook or any other form of social communications outside of the times specified in point 5 above.
7.That Dr NZ, Family Therapist, cease therapy immediately with the said children and their mother.
8.That in the interim until new orders are made, the Husband be at liberty to forward cards and presents to Dr NZ and Wife be ordered to deliver cards and messages from the children to and from the Husband and the children without having any right to withhold these cards and messages whatsoever.
9.That within Seven (7) days of the date of these orders the Wife cause to be delivered to the Husband all the children’s possessions including but not limited to clothes, toys, school bags, books, toiletries and other children’s chattels.
10.That the Wife pay the Husband’s costs of an incidental to the parenting proceedings, such costs to be paid on an indemnity basis.
11.That all existing parenting Applications be otherwise dismissed.
By an amended response filed on 26 April 2013, the mother seeks orders in the following terms:-
1.That the Application filed 27th December 2012 be dismissed.
2.That pursuant to Section 118(1)(c) of the Family Law Act 1975 the Applicant be restrained from instituting proceedings under the Family Law Act for parenting orders without first obtaining leave of the Court.
3.That the Applicant pay the Respondent’s costs of an occasioned by his Application on an indemnity basis and if not on an indemnity basis then on a party / party basis.
4.That the costs referred to in paragraph 3 be paid to the wife out of the nett proceeds of sale of the former matrimonial home known as the P Property currently held for the parties by Gadens Lawyers and be taken into account by the Trial Judge when determining the financial issues a partial property settlement to the Husband.
5.Such other orders as this Honourable Court deems fit.
I take no issue with the fact that each party has filed proceedings in a case rather than an initiating application and a response seeking final orders.
Conduct of the Proceedings and Issues for Determination
This file was first listed to me in court for a mention on 13 March 2013. The father appeared on his own behalf and Ms Smallwood, of counsel, appeared for the mother who attended Court. After hearing submissions, I ordered that:-
1.This matter be fixed for final hearing before me on 5 June 2013 at 10.00 am estimated to take 3 days NOTING THAT the matters requiring determination are:-
a)the wife’s application that the husband’s parenting application be dismissed on the basis that there is not sufficient or any change in circumstances such as to warrant parenting matters being re-litigated;
b)the wife’s application for an order against the husband pursuant to s.118(1)(c) of the Family Law Act 1975 that he shall not without leave of the Court institute proceedings under this Act in relation to the children; and
c)costs.
The Order set the parameters of the dispute which requires now determination. There was a notation that, in the event that an earlier hearing date became available, the parties would be notified and requested to be ready to run their case earlier.
On 13 March 2013 the father sought to have an independent children’s lawyer appointed and the mother opposed that application. Dr NZ, psychologist, gave evidence by telephone. She is the children’s therapist pursuant to the final orders made in 2012. I asked Dr NZ whether, in her opinion, it could be disruptive to the children to have an independent children’s lawyer appointed. Dr NZ expressed the following opinion:
[DR NZ]: It can be, is the right answer. The children are very settled at the moment, doing very, very well. They’ve been heavily involved in the court case for many years prior to that. They have been back involved in those sort of beliefs and been given information about the court system, because these children have been so heavily involved in collecting evidence for their father and fabricating evidence for their father, which is truly atrocious, that being aware of any court action at all is likely to upset them and cause a reversal in their behaviour with their mother in terms of trying to fabricate or collect evidence for their father
The father cross-examined Dr NZ about the right children have to express their views in proceedings affecting them under Article 12 of the Convention on the Rights of the Child to which Australia became a signatory on 22 August 1990[2]. Dr NZ’s opinion was that M and D’s views and wishes had been inappropriately influenced by the father and that neither child had a reasonable perspective, which is what she had been attempting to help them attain in her therapy.
[2] Section 60B of the Act was amended with effect from 7 June 2012 to include as a principle underlying the objects of Part VII of the Act the giving of effect to the Convention on the Rights of the Child.
I was satisfied that it would not be in the best interests of the children to appoint an independent children’s lawyer and declined to make the order sought by the father.
Earlier hearing dates became available and the matter proceeded before me on 22, 23, 24 and 27 May 2013 with the father still representing himself and Ms Smallwood, of counsel, appearing for the mother. The first day of the hearing (22 May 2013) was largely devoted to objections to evidence. By the second day, I was in a position to ask the father what particular changed circumstances he relied upon to re-litigate parenting proceedings and I will set out his response below.
At the hearing in May 2013, the only witness required for cross examination was Dr NZ who was required by the father. I will deal with Dr NZ’s evidence below.
I have had regard to various documents referred to by the parties in submissions or by reference, including the psychiatric assessment of both parties by Dr W dated 20 February 2009, the report of Mr O dated 24 February 2009, Dr F’s report dated 3 April 2010, Dr NZ’s affidavit sworn 30 May 2011 and the reasons for judgment of Cronin J delivered 24 December 2010, 22 June 2011 and 10 August 2012 and the reasons for judgment of the Full Court delivered 20 June 2012.
On 4 July 2013 the Full Court allowed the husband’s appeal against orders by Cronin J that the father pay the wife’s costs on an indemnity basis, being (A)SOA67 of 2012. By order made on 2 August 2013, by consent, I allowed the parties an opportunity to make further submissions consequent on the Full Court’s decision. The mother filed her further submissions on 21 August 2013. The father filed his further submissions on 4 September 2013. The father’s submissions have little to do with the decision of the Full Court. They conclude with the following three paragraphs:-
The Husband submits to this court that the Husband is prepared to take this matter all the way to the UN Human Rights Commission and the UN Child Rights Commission in order to expose the Truth, the corruption that is going on with the Family Therapists, and obtain the Justice that the Husband’s children deserve and the Husband makes no apologies for being so blunt and direct as the children and the Husband have always been telling the Truth despite the opinions of the Court practitioners, ICL’s and therapists involved in this case.
The Husband submits to this court that when the children reach an age where they will be able to stand on their own feet, without being silenced by the powers of be, therapists and ICL’s alike, and describe what really happened in their lives, the reputations of all the practitioners involved will be in tatters as the children and the Husband have continuously been telling the Truth.
The Husband finally submits and reminds this court that the Husband has always insisted on 50-50 contact with the children and asks Her Honour to resign from this case as in the eyes of the Husband, Her Honour has shown significant bias against the Husband and has not afforded the Husband Fair hearings.
I note that the father’s assertion of bias by me against him but, given the lack of specific allegations, I did not treat it as an application that I disqualify myself. I have regard to the parties’ further submissions.
After a regrettable delay in concluding this matter, I invited the parties to apply to re-open their respective cases if either sought to adduce further evidence of facts relevant to the best interests of M and/or D which had eventuated after the close of evidence in May 2013.[3] The matter was listed before me on 27 March 2014. The father appeared in person. Ms Smallwood appeared for the mother. Dr NZ was available and was linked in by telephone and, without objection by either party, was able to hear what transpired prior to making a brief statement herself. In summary, three matters of some significance had arisen since evidence was concluded in May 2013.
[3] See Exhibit “C8”.
First, BS Contact Service ceased to offer the same level of supervision to the family and the father had not had supervised time with the children in that setting or otherwise since June 2013.
Second, Dr NZ has suspended her therapy with the children pending delivery of the decision in this case on the basis that therapy would not be productive until such time as the children can be advised of the outcome of these proceedings or, in other words, there is a set of ground rules under which she could tell the children that they must operate. Dr NZ stated that after she gave evidence at a hearing on 24 May 2013, the children’s behaviour deteriorated dramatically and, as Dr NZ had predicted, the children began to refuse to eat the mother’s food. She said the children had been acting as if they were “in a grand final” in terms of attempting to manufacture evidence against the mother for the benefit of the father.
Third, there had been numerous notifications about the children to Department of Human Services. Counsel for the mother informed me that there had been 11 notifications. The father informed me that he had made a notification and was dissatisfied with the Department’s decision not to interview the children and, after the Ombudsman intervened on his behalf, the Department had commenced a more thorough investigation which would be finalised by the end of April 2014. Counsel for the mother confirmed that the children had been interviewed by Departmental workers on one occasion for four hours and the Department had interviewed personnel at the children’s schools, WG Primary School and Suburb E High School.
The father sought that I delay delivering my decision until after the release by the Department of Human Services (‘DHS’) of its report. Counsel for the mother agreed, most reluctantly, that I should delay delivering my reasons until after the release of the report by DHS.
I ordered that a subpoena be issued to DHS for the production of their relevant files in mid-May 2014 by which time any report would have been published and considered by the parties.
The matter next came before me for mention on 21 May 2014. The DHS appeared as amicus curae. Counsel for DHS informed me that a letter had been prepared dated 20 May 2014 summarising their contact with the family and concluding that the children had not been abused by the mother. Both children had been assessed by a paediatrician, DHS had visited the mother’s home after the children had alleged that they were not fed but were satisfied that the mother always had food available to the children in the fridge and in their schoolbags and that there was no substance to the allegations about the mother.
I will deal later in these reasons with this recent assessment by DHS and the evidence given by the protective worker. However, on 21 May 2014, I directed that each party could inspect documents produced by DHS and the A Hospital and make any further submissions in relation to that material. Each party made submissions to which I have had regard.
The father’s submissions were filed on 16 June 2014. Instead of directing himself to the subpoenaed documents, the father’s submissions were replete with allegations against Dr NZ. He submitted that:-
DHS proceed to echo exactly what [Dr NZ] has claimed and it’s very much doubtful whether DHS are also telling the TRUTH about events. Similar connotations appear in the [A Hospital] file.
The father submitted that the children are of an age such that they should be entitled to ‘have a SIGNIFICANT say in what happens in their lives without any intervention or stonewalling by the Powers of Be (sic)’. The father stated:
Finally, the Husband requests that Her Honour dismiss Herself from this case effective immediately, for the very least, apprehended bias. The reasoning for this is as follows: On the 27th May 2013 whilst the Husband was presenting his submissions to Her Honour in the afternoon at approximately 2:45pm, the Husband quite rightly made a statement to her Honour that the Husband could not contest the Current AVO that the Wife has against the Husband, because under Victorian Law and Magistrate Court Rules, without Legal representation, the Husband was not able to Cross-examine a Protected witness. Her Honour then said in an angry raised tone: “You’re a liar [Mr. Prantage], there is no such law in the Magistrates Court”. The entire Courtroom heard this, the Husband’s support group heard this. The Husband made a note of this in his notebook and then later when the Husband ordered the transcript from Auscript, Her Honour’s words had been altered to “I do not accept this Mr. Prantage”. The Husband has challenged Auscript on 2 separate occasions about this. Auscript on both occasions replied that the audio is as transcribed. The Husband asked to hear the audio but was rejected. It is blatantly obvious that Transcripts are being manipulated. If Her Honour casts eye on page 5 of the current AVO, Her Honour would observe quite clearly that under Victorian Law, a respondent cannot cross-examine a protected witness without Legal Representation. Therefore not only is the Husband correct in what he said, the Husband has never been allowed to prove his innocence and more importantly Her Honour has got it plainly and simply wrong. The fact that Her Honour’s original words to the Husband don’t appear in the actual transcript is cause for Judicial Error, Judicial actual and apparent bias bordering on Judicial Misconduct and Her Honour must dismiss herself from this case effective immediately the Husband will be immediately seeking A Writ of Prohibition from the High Court of Australia against Her Honour referencing the case (The Queen v Watson, Ex parte Armstrong in the High Court).
I treat the above submissions by the father as an application by the father that I recuse myself from the proceeding. To my knowledge the father has not sought any prerogative writ and nor did he seek that I disqualify myself when he appeared before me last week and made an urgent oral application that the children reside with him (proceedings to which I will come shortly). I infer that the father contends that, by me wrongly accusing him of being a liar and misstating the law in respect of crimes family violence proceedings, I have acted in a way in that a fair minded lay observer might reasonably apprehend that I will not bring an impartial and unprejudiced mind to the resolution of the issues which I am required to decide (see Johnson v Johnson (2000) 201 CLR 488 at 492).
In fact, the transcript of the proceedings on 27 May 2013 records as follows:
MR PRANTAGE: But what I’m trying to tell you, your Honour, is that I had no legal representation and therefore, under Magistrate Court Rules, I cannot cross-examine a protected witness and therefore I either consent or the order is made against me.
HER HONOUR: I don’t accept that, Mr Prantage.
MR PRANTAGE: Well, that is what was said to me, your Honour.
HER HONOUR: Well, you can represent yourself and find out the real law.
MR PRANTAGE: I represented myself and that was what was sent to me.
I did not utter the words which the father attributes to me. The transcript is correct. It has not been edited by me or otherwise. The audio recording has not been tampered with by me or at my direction. This is a superior court of record and the transcript stands as an accurate record of the proceedings.
I do not accept that the father was unable to challenge the mother’s evidence by cross examination in the proceedings in the State Magistrates’ Court. The relevant legislation is ss 70 and 71 of the Family Violence Protection Act 2008 (Vic). In short, it provides that unless the person in the mother’s position consents or the court decides that it would not have a harmful impact on her to be cross examined by the respondent (father), the court is required to ask if the respondent (father) has sought legal representation for the purpose of cross examination of the mother. If the court is then satisfied that the respondent father has not had a reasonable opportunity to obtain legal representation, it must grant an adjournment on its own initiative or if requested by the respondent (father). If the respondent does not obtain legal representation for the cross examination of a person in the mother’s position after being given a reasonable opportunity to do so, the court must order Victoria Legal Aid to offer the respondent legal representation for that purpose. Despite anything in the Legal Aid Act 1978 (Vic), Victoria Legal Aid must offer to provide legal representation. Finally, if the respondent refuses the legal representation or otherwise refuses to co-operate, the court must warn the respondent that, if the respondent is not represented and not permitted to cross-examine the person in the position of the mother, about events relevant to the application the subject of the proceeding, neither the respondent nor the respondent's witness may give evidence about those events.
The matters alleged by the father did not occur as he represents. I am satisfied that a fair minded observer would not, in the circumstances of this case, conclude that I have brought anything other than an impartial mind to the task of identifying the issues and determining how the evidence advances one case over the other. Accordingly, I have not acceded to the father’s application that I recuse myself from these proceedings.
On 17 July 2014 the court convened urgently after my chambers was notified that the father was in the Court building with the children, in apparent breach of the final orders made 2 March 2012 and an intervention order obtained by the mother for the protection of herself and the children, and the mother wanted the children to be returned to her. Without objection from counsel for the mother, I permitted the father to make an oral application for orders that the children live with him and spend supervised time with the mother. The father was entitled to adduce evidence orally in support of his application and I will discuss that evidence later in these reasons. It is sufficient to say that the father alleged that the children had run away to his parents and had complained to him of being neglected and physically and emotionally abused by the mother. The father also made allegations about Dr NZ including that she was continuing to lie to the court and had recently advised the mother by email to commence “screaming and yelling” at D in order to frighten him and “make him cower”.
Dr NZ gave evidence by telephone in which she provided context to the email referred to by the father. Dr NZ’s evidence was that the children are “really disturbed” and that it is her belief that the father has continued to communicate with the children surreptitiously and in breach of orders. Dr NZ stated that she intended to resume therapy with the children after the judgment has been delivered.
The father relied upon oral evidence by First Constable SC of Victoria Police about his involvement with the family that day. The First Constable and a colleague attended the Commonwealth Law Courts Building in response to a call to do so. His evidence was that after attending the Court building and finding the father with the children in breach of an intervention order he took a statement from M who told him “we can’t stand it in our house” and complained that the mother locks them in the house on the weekend, that they don’t have any keys for the house and that they haven’t seen their father recently. Counsel for the mother opposed the father’s application.
After hearing the father’s oral evidence, and evidence from Dr NZ and the First Constable and the father’s cross examination, I dismissed the father’s oral application for a change of residence. My reasons for doing so are reported as [2014] FamCA 541.
Counsel for the mother sought an order for a power of arrest to secure the injunction in the Order made 2 March 2012 and relied upon the fact that the father allowed the children to remain in his care in apparent breach of the injunction. I was satisfied that was the case. I granted the mother’s application.
Counsel for the mother also made an application for the mother’s costs of the day which I granted.
The mother left the Court building with the children.
I incorporate my reasons for decision delivered 17 July 2014 into these reasons.
Insofar as Dr NZ referred to complaints made by the father about her to her professional standards board. I directed that she produce a complete copy of those complaints to the Court by causing them to be delivered to the Subpoena Documents Clerk. I provided each party with an opportunity to inspect those documents and make such further submissions as they wish to make in writing by 10.00 am yesterday. No further submissions were received. I have regard to the father’s admission that he has made several complaints about Dr NZ but I have not had regard to the documents produced by Dr NZ.
Documents and evidence relied upon by the parties
The father initially filed a supporting affidavit on 27 December 2012 which comprised 358 pages and three volumes of annexures. It was sworn on 18 December 2012. On 13 March 2013 he informed the court and the wife that he would not be relying on that affidavit. Counsel for the mother estimated the costs incurred by her client consequent upon the father’s affidavit were approximately $21,000 on the scale of costs as set out in Schedule 3 to the Family Law Rules 2004 (Cth), but that the mother would be liable for more than that pursuant to a cost agreement.
The father filed a further affidavit sworn 6 April 2013 in support of his application filed 27 December 2012. This affidavit comprised 153 pages and purported to rely on the same three volumes of annexures from his first affidavit sworn on 18 December 2012.
At the commencement of the hearing, the father relied upon the following:
a)his affidavit sworn 6 April 2013;
b)three volumes of annexures to his affidavit sworn 18 December 2012;
c)BS Contact Supervision Reports for 9 March 2013 and 13 April 2013;
d)case summary document filed 17 May 2013;
e)subpoenaed Dr NZ file, part of Annexure “A” of the affidavit sworn 17 May 2013;
f)report of Dr NZ dated 10 May 2013;
g)his affidavit sworn 17 May 2013;
h)reasons for decision delivered by me on 13 March 2013;
There were extensive objections to the father’s affidavits. Some parts were struck out. Some parts were abandoned by the father.
On the first day of trial, the father sought to rely on this affidavit and his affidavit sworn and filed 17 May 2013. On the second day of trial, the father stated that the evidence he relied on to demonstrate a change of circumstances in support of his application was limited to the three reports of the supervised visits the father had with the children at BS Children’s Contact Service and Dr NZ’s report dated 10 May 2013. Accordingly, for the second time the father withdrew reliance on voluminous material filed by him with the consequence that further costs incurred by the mother have been unnecessarily incurred.
The mother relied upon the following:
a)her amended response filed 26 April 2013;
b)her affidavit sworn 23 May 2011;
c)the affidavit of Dr NZ sworn 1 June 2011;
d)her affidavit sworn 25 January 2012;
e)her affidavit sworn 30 January 2013;
f)her affidavit sworn 26 April 2013;
g)the affidavit of Ms RK sworn 12 April 2013;
h)reasons for Judgment of the Honourable Justice Cronin delivered on 22 June 2012; and
i)reasons for Judgment of the Honourable Justice Bennett delivered on 13 March 2013.
Neither party sought to cross examine the other party during the sittings in May 2013. When the proceedings were mentioned or listed subsequently, I asked the father questions and Dr NZ, Ms LS (protective worker from DHS) and First Constable SC were cross examined.
Proof and findings of fact
The relevant test for the Court’s assessment of evidence in this matter is found in s 140 of the Evidence Act 1995 (Cth). Section 140(1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities.
Lord Nicholls discussed the standard of proof to a balance of probabilities in Re: H & Ors (1996) 1 All ER 1[4] in the context of a wardship application. Relevantly, His Lordship stated:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
[4] (1996) 1 All ER 1 at 16.
The more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.[5]
[5] Re Dellow’s Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J cited by Carmody J in Derek and Derek [2005] FamCA 356.
In these reasons a statement of fact is a finding of fact.
Impressions of witness whose evidence was subject to cross examination
In proceedings in this Court, there is a danger that events which would pass almost unremarked in daily life, were it not for litigation, are used to extrapolate character faults which are said to go to a party’s capacity to parent or to a party’s credit or which demonstrate that a witness is unreliable. The arena of litigation can act as a magnifier. The court should not lose a sense of proportionality. I am mindful that people can have different recollections and can give differing but still honest accounts of the same event. However, there is nothing subtle about this case. It is a case of extremes in which the father makes very serious allegations about the mother, Dr NZ and others.
These proceedings exemplify what I earlier quoted in relation to the burden of proof. That is, the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it (at paragraph 53). It is necessary for me to make findings about the credit and reliability of the father and of Dr NZ and the other professional witness whose evidence the father asks me to disregard or find to be false and which was tested in cross examination.
The father
There are a number of issues about which the father gave evidence or was cross examined which lead me to conclude that the father will give evidence or make statements in court to achieve his desired end at the expense of telling the truth. I will provide two examples.
On 22 June 2011 the father was ordered by Cronin J to deliver/make available the children’s belongings at the same time as they commenced to reside primarily with the mother. The husband did not do so. In the hearing before me counsel for the mother relied on an email sent by the father to M on 25 July 2011 at 12.20 pm which was annexed to the affidavit of the mother sworn 25 January 2012. The email stated:
Kids, if you are asked whether I gave you your stuff, you need to say that a taxi delivered your clothes and your books in a suitcase and b threw them away and also after that a week later I dropped off all your books including [Ds] Greek School stuff and clothes and toys with a friend of mine who has a van outside b’s place and they threw everything away and now they are saying that they want it off me. Also [D] was using my guitar, the drum kit is mine and the piano is papou’s and he was loaning it to you.
Another email sent by the father on 25 July 2011 at 11.21 pm stated:
[M] just letting you know that ive taken your piano with a piano removalist to papous place and we are going to say that it’s his so b cannot get it and that he loaned it to you to play. All your other stuff, so that she cannot get it, ive packed it away and its gone to a safe place so the fucking bitch won’t get anything, same with [Ds] stuff. I’ll give her your bikes and helmets, they don’t fit you guys anymore anyway. Fuck them!! When you come back to me I will buy you new bikes, better ones and helmets. Fuck them all…tell anyone that asks you that apart from the suitcase of clothes and books I sent you with the taxi, a week later I dropped everything else off with my friend’s van and she and her family threw everything away in the bins and now are saying that they want it so they can get more money off me…
It is common ground that the reference to “b” in the above message is a reference to the mother. Before me, the father’s evidence was as follows:
[MR PRANTAGE]: I sent all the children’s – despite what I said there, I sent all the children’s chattels to the mother. The only thing I didn’t send was the piano and it was proven on 2 March ‑ ‑ ‑
HER HONOUR: So why did you lie to your child?
[MR PRANTAGE]: I don’t know why. I have got no explanation, your Honour.
[…]
[MR PRANTAGE]: I delivered it exactly the way I said it. A week later the children got everything. They got their essentials the day after, as I was instructed, and a week later they got everything through a courier who, unfortunately, is no ‑ ‑ ‑
HER HONOUR: Why didn’t you just say you need to tell the truth?
[MR PRANTAGE]: Heat of the moment. I don’t know. I don’t know, there was so much ‑ ‑ ‑
HER HONOUR: Heat of the moment, you don’t write more ‑ ‑ ‑
[MR PRANTAGE]: There was so much going on and I was so, if I can put it bluntly, pissed off with [Dr NZ] potentially writing that email that, you know – but it was proven on 2 March, if I may add, 2012 that the piano does, indeed, belong to my father. And my father was questioned on whether he would hand it to [M] as a gift, and my father made quite a blunt and succinct statement that [M] will get the piano when she turns 18. And he has a receipt – he had the receipt to prove it.
In the above example, the father prevailed upon the children to lie to protect himself and to defeat compliance with an order of the court. It is particularly reprehensible that the father employed the children to act as his agents in the deception and that he required them to lie to the mother who was, by this stage, their primary carer. It is also not lost on me that the consequence of the father’s conspiracy of dishonesty was that the children were required to do without many of their belongings which, in turn, indicates to me that the father has little regard to collateral damage and who may be hurt or suffer adverse consequences by his deception.
In the context of this application, the father seeks to recast certain evidence and concessions upon which the final parenting orders were made without opposition by him. The father alleges that he was bullied by his counsel at the time, Ms Benjamin, into not consenting to but also not opposing the interim parenting orders made on 22 June 2011 and then consenting to final orders on 2 March 2012. It is the final orders that his current application seeks to upset or reverse so that the children live with him.
At an earlier mention before me on 13 March 2013 the father stated:
[MR PRANTAGE]: My barrister, Elizabeth Benjamin, threatened me inside one of the rooms here and she walked out on me simply because she “had enough” of me telling her what to do because [Dr NZ] was ready to be on the stand to be cross examined, and for some reason nobody wanted to cross examine her.
When asked why he was not calling Ms Benjamin as a witness to give evidence about his allegation that she bullied him into consenting to orders the father’s explanation was that he did not know how. On the first day of hearing this matter I explained to the father that he would have to subpoena Ms Benjamin if he wanted her to give evidence. At the same time, counsel for the mother put the father on notice that if he did not call any witness to give evidence about the alleged incident she would submit that the Court should draw an inference in accordance with the rule in Jones v Dunkel (1959) 101 CLR 298, that is, that Ms Benjamin’s evidence would not have assisted him. This concept is not unfamiliar to the father as Cronin J, in his reasons for decision delivered 24 December 2010 at paragraph 30, drew a similar inference from the father’s failure to call witness to corroborate his case.
Ms Benjamin, of counsel, also represented the father at the contravention proceedings on 5 September 2011. During the hearing of this matter before me the father stated that he had written a letter of apology to Ms Benjamin on his solicitor’s advice, requesting that she continue to represent him in the proceedings. He subsequently produced the email:
Dear Elizabeth,
I wish to inform you that I am very sorry for the tone of my language and my apparent aggressive behaviour and assure you that it will DEFINITELY not happen again. I find myself in the most tragic of situations here and as you can appreciate what [Dr NZ] has written in her reports is skewed and definitely not true. With this I request that you accept my apology and beg you to appear on my behalf tomorrow. Please don’t take this personally, I am after all a father in desperate need to protect my children from any wrong doing or harm. We have been battered and bruised for so long unjustly. Please understand.
Regards,
[Mr Prantage]
I am prepared to accept that periodically there was some tension between the father and his counsel, Ms Benjamin, but am far from satisfied that the father was overborne when final orders were sought by consent on 2 March 2012 or otherwise. The father has a forceful personality, he is articulate and single minded and not shy about arguing. I do not accept that the father was coerced or forced to resolve proceedings as he did at the contravention proceedings in September 2011 or six months later when the final parenting orders were made. The father’s version of events is at odds with his presentation in court. It is also inconsistent with his written apology to Ms Benjamin extracted above. It is improbable that Ms Benjamin could have held sway over the father for the course of a day let alone for the months between the last interim parenting orders and the contravention proceedings and the final parenting orders. It is also unlike the father not to complain or assert his dissatisfaction as is indicated by his numerous complaints about Dr NZ to her professional body. Likewise, the father’s complaint to the Ombudsman against the Department of Human Services.
The father’s allegation about being bullied by Ms Benjamin (which I do not accept) is indicative of the father attempting to lay blame on others without justification and failing to accept responsibility for his own actions.
I am also prepared to infer from the father’s failure to call Ms Benjamin that her evidence would not have assisted his case (see Jones v Dunkel supra) and I do so.
Then there is the email allegedly from Dr NZ to the mother and intercepted by M.
I understand that possibly as early as June 2011 but certainly by 6 March 2012, there was discussion at court, between the parties, about an email which the father alleged, in his trial affidavit, had been sent to him on 26 July 2011 from “[MRB]”, a pseudonym which both parties accept was used by M to contact her father after being removed from his care on 23 May 2011[6].
[6] The email is appendix “A” to a subsequent report by Dr NZ’s dated 10 May 2013.
The email from M to the father refers to an email purportedly sent by Dr NZ to the mother. M purports to extract the text of the alleged email from Dr NZ to the mother, as follows:
Dear [Ms Prantage],
In response to your last email don’t worry I have more power than the kids. I will tell the court that things with you and the kids are going fine even though the kids don’t talk to you and when they come to me they just say that you hurt them and that they want their father back, but I will tell the court otherwise. Don’t worry, I will make sure they don’t go back with [Mr Prantage}.
Regards,
[Dr NZ]
Dr NZ advised the parties’ representatives and the independent children’s lawyer that she had not written the email. She pointed out that her given name was mis-spelt insofar as how she shortens her Christian name. The mother maintained that she had not received any such email.
The father barely cross examined Dr NZ in relation to the alleged email which is a cornerstone of his assertion that Dr NZ has lied to the Court. The relevant evidence was:
[MR PRANTAGE]: So [Dr NZ], did you write this email?
[DR NZ]: Well, no, because it’s an email from the girl. From your daughter to you.
[MR PRANTAGE]: Did you compose any words to the effect of what my daughter has just sent me in that email?
[DR NZ]: No.
[…]
[MR PRANTAGE]: [Dr NZ], in all that we’ve discussed this morning can you – and remembering you have affirmed that you are going to state the truth – can you categorically state that you did not write that email, that false email, to this courtroom?
[DR NZ]: My name is spelt wrong in the email, your Honour.
HER HONOUR: No, just, just ‑ ‑ ‑?
[DR NZ]: I did not write the email.
HER HONOUR: ‑ ‑ ‑ answer the question?
[DR NZ]: I didn’t write the email, your Honour.
HER HONOUR: You didn’t write an email to that effect?
[DR NZ]: No, your Honour.
It is common ground that the father repeatedly requested M to send the original email which she said she had intercepted but it was never sent. The mother’s case is that it was never sent because it never existed. I accept that whilst the father was waiting for M to send the original email, he had not known that there was no such email. Counsel for the mother submitted that, by the time of the hearing before Cronin J on 1 March 2012, the father ought to have realised and accepted that the email was a fabrication by M.
There is simply no cogent evidence in this case that Dr NZ wrote the email as the father continues to allege. The fact that the father persists with his allegations against Dr NZ in the face of her consistent denials, her sworn evidence on 24 May 2013 and his failure to recognise the improbability of Dr NZ having written such an email raises serious concerns about the father and, I find, is particularly relevant to the matters of which I must be satisfied in the context of s 118(1)(c) of the Act. It is also helpful in my assessment of the father’s evidence about the physical and emotional deterioration of the children since they have been in the father’s care and the extent to which I ought to accept that evidence where it conflicts directly with the evidence of the mother, Dr NZ and the Department of Human Services.
Dr NZ is an experienced psychologist, well known to the Court. She understands her responsibilities to the Court as an expert witness in parenting cases. The father’s allegation that Dr NZ wrote to the mother as M had reported would, if true, likely constitute an attempt by Dr NZ to pervert the course of justice and leave her open to prosecution for a criminal offence. I expect that it would also end her career as an expert witness in children’s matters. In order for me to accept that Dr NZ had written the email, as the father persists in alleging, I would need to be satisfied at the highest standard of the civil burden of proof. Having now heard the evidence and the father’s cross examination, I am not so satisfied.
The tenacity with which he has adhered to the allegation that an email emanated from Dr NZ is alarming. Either he seriously underestimates the abilities of others to analyse facts or he does not care what he says. It is poignant that, according to the father, “the very first thing M whispered to me while we were hugging each other very tight [was ] … that Dr NZ is saying that if you don’t stop saying that false email is true, contact will be stopped.”
I agree with the assessment that Cronin J made of the father in December 2010 to the effect that “when faced with incontrovertible evidence, he fell back to the position that everyone else was lying or manipulating the situation to his disadvantage.” That accords with my observation of the father.
The father is an unreliable witness who is prepared to lie or misrepresent facts where he perceives that it is in his interests to do so.
Dr NZ
The father cross examined Dr NZ on a number of occasions in these proceedings. Her evidence was not shaken in any respect.
I accept that she is a truthful witness and a skilled psychologist.
Where her evidence conflicts with the father’s evidence, I accept Dr NZ’s evidence in preference to the father’s evidence.
Ms LS (child protection officer)
I will deal with Ms LS’s evidence in detail later in these reasons. It is sufficient to say that I found her evidence to be truthful and reliable. My impression is that her opinions are soundly based.
I do not accept the assertion of the father that she is lying or that she has abrogated her responsibilities to Dr NZ.
Legal principles: the rule in Rice and Asplund
The legal principles about re-opening concluded child related ligation are clearly set out by the Full Court, comprising May, Thackray and Strickland JJ, in DL v W [2012] FamCAFC 5. Their Honours commence with reference to the “rule” stated as follows by Evatt CJ in Rice and Asplund (1979) FLC 90-725 at 78,905:-
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, [.…], change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant, that, […] there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material [..]. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Their Honours refer to the decision of Warnick J in SPS & PLS (2008) 217 FLR 164. There, his Honour, who ultimately found that a judge at first instance had erred in his application of the rule, observed that the “rule is long established – nearly thirty years now in this jurisdiction – and was alive and well before that in similar jurisdictions, and so, one might think, is in little need of discussion. But sometimes familiarity and repetitive usage may abrade the subtleties of a principle or expose those not originally appreciated”.[7] Warnick J made a number of observations which are apposite to the present case:-
[7] SPS & PLS (2008) 217 FLR 164 at 173.
(a)At whatever stage of the proceedings the rule is applied, its application should remain merely a manifestation of the “best interests principle”.[8]
[8] Ibid.
(b)The rule may not impede hearing an application for a small alteration to child related orders, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes which involve a lengthier court process.[9]
[9] Ibid at 178.
(c)The application of the rule is in part “to discourage “endless litigation” [and that ] that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.[10]
[10] Ibid at 174.
(d)In the Marriage of McEnearney (1980) FLC 90-866, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.
The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.[11]
[11] Ibid at 174–175.
(e)Another end served by “the rule” is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.[12]
[12] Ibid at 175.
(f)Warnick J ageed with and adopted the further statement of Nygh J in McEnearney (supra), at 75,499:
One comes back to the fundamental principle that the interests of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court to soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court.
His Honour elaborated[13] that “Where an application is dismissed at a preliminary stage [because it does not qualify under the rule], it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
(h)In relation to the impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 on the operation of the “rule” Warnick J held that:-
[86] […] the rule in Rice and Asplund is merely a manifestation of the best interests principle […] However, its application must recognise the new legislative content in which the question is now posited and answered. This includes the objects (and underlying principles) of the Part, set out in s 60B and s 61DA which provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted, but if it is not, then under s 65DAA, the court must consider whether the child spending equal time with each parent would be in the bests interests of the child or, if such an order is not to be made, whether the child spending substantial and significant time with each parent would be in the best interests of the child.
[87] While it is clear that of themselves the legislative changes introduced by the 2006 Act do not constitute a change of circumstance for the purpose of the Rice and Asplund rule, a change in relevant facts may take on a significance because of the legislative amendments that it would not have possessed before them.
[13] Ibid at 178.
The requisite change of circumstances (or lack of it) can be more difficult to describe in the abstract than it is to recognise when one sees it. Bryant CJ, May and Boland JJ in Bolitho and Cohen (2005) 33 Fam LR 471 at 479–480 agreed with and adopted the principles stated by Collier J in King v Finneran [2001] FLC 93-079 as follows:-
44.In King v Finneran, a case decided after the Family Law Reform Act 1995 (Cth), Collier J, when discussing the nature of the change required to warrant further consideration of a fresh application at 88,368, said:
The words in any event are not words of necessarily strict dictionary definition. In D and Y (1995) FLC ¶92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong (sic) in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.(emphasis added)
Legal principles: injunction under s 118(1) against a ‘vexatious’ litigant bringing further proceedings without leave of the court
Whilst the Access to Justice (Federal Jurisdiction) Amendment Act 2012 has passed into law and the provisions concerning suppression and non-publication orders (Schedule 2) have commenced, those which concern vexatious proceedings (Schedule 3) do not commence until proclamation and, failing that, on the day after six months from the date of Royal Assent. The Act received Royal Assent on 11 December 2012 and Schedule 3 commenced on 11 June 2013. However, Schedule 3 only applies to applications initiated on or after that date so the new law has no application to this aspect of the proceeding. The father’s application is filed 27 December 2012. Accordingly, it is s 118(1)(c) of the Act (now repealed) which applies to this case.
Section 118(1) provided that the court may, at any stage of the proceedings, if it is satisfied that the proceedings are frivolous or vexatious, dismiss the proceedings, make such orders as to costs as it considers is just or, if the Court considers appropriate, order that the person who instituted the proceedings shall not, without leave of a court, institute proceedings under the Family Law Act 1975 (Cth) of a kind or kinds specified. Such an order has effect notwithstanding any other provision of the Act.
The mother contends that the proceedings now before me are brought vexatiously by the father and seeks that his application be dismissed and that the father be enjoined from bringing any further parenting application without first obtaining leave of the Court to do so. The father opposes the order sought by the mother.
The Full Court of the Family Court of Australia (May, Thackray & Benjamin JJ) in Oscar & Traynor,[14] considered the requirements of s 118(1)(c) as follows:
93.Section 118 of the Act together with r 11.04 of the Family Law Rules 2004 grants the court power to dismiss an application of a party and restrict further applications being filed, unless with the court’s permission.
94.Although the court has the power to make such an order, it is a power that the authorities indicate must be used sparingly. As Kirby J said in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 at 31-32:
First, it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented.
Secondly, 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. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court’s jurisdiction.
[14] Oscar & Traynor [2008] FamCAFC 158.
The requirements for the exercise of the power contained in s 118(1)(c) of the Act were recognised in DJC v SJS and Another (2005) 34 Fam LR 329:
338.It can be seen that, as a necessary condition precedent to making any order under s 118 or r 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.
In the matter of Kettle & Green (Unreported, Family Court of Australia, 2 April 2008) Warnick J was satisfied that the litigant against whom the order was sought had been misguided, reckless and careless in the institution and conduct of proceedings to an extent that justified relief under s 118(1)(c). Warnick J explained:-
26.I do not find that Mr [Kettle] has frivolously brought these applications. He does not impress me as doing what he has done for the fun of it, or lightly, or that he is vexatious in the sense that he is simply trying to drag the mothers to Court at every opportunity.
27. However, I do think that he is vexatious in the sense that he is, or has been, misguided. He has carried a sense of being wronged about various decisions, some of which have been aired today, but his response has been a vexatious one. Rather than sit down and assess whether something in relation to which he thought he was hard done by really presented a current problem to him, it would seem that his first reaction has been to dash out a Court document, serve it, and bring the solicitor for the mothers to Court. Examples are: an application for a mandamus directed to his Honour, Bell J, to provide reasons; there were complaints about decisions as long ago as August 2007. In that sense the father, in my view, has brought proceedings that were vexatious and, in my view, it is appropriate that any applications that he may wish to bring in the future be subject to the scrutiny of a Judge of Court before they are allowed to proceed.
[…]
29.However, the first point Ms Ellis made was that the father has been largely unsuccessful. That is true. In my view, there was an element of recklessness in some of the claims he wished to pursue. Though he is not legally trained, he had not made any attempt to ascertain whether this Court had any jurisdiction to make the sorts of orders that he sought.
30.People who act for themselves, as they are fully entitled to do, must nonetheless make a reasonable attempt to put themselves in a position to properly conduct the proceedings that they bring. It is careless and reckless to bring people to Court to confront claims that are, in fact, nonsense.
History, chronology of events, expert evidence and determinations
The mother was born in Australia in 1970 and is 43 years of age. She is has professional qualifications but was involved in home duties throughout most of the marriage. The mother is currently caring for the children on a full-time basis and is consequently unemployed. She has previously suffered from a thyroid condition.
The father was born in Australia in 1965 and is 48 years of age. He has been employed by TS Pty Ltd for more than twenty years. In proceedings in this Court on 13 March 2013 the father stated that his salary package is the equivalent of $120,000 per annum, of which he receives direct net income of $78,000 a year.
The parties were married and began living together on 8 February 1997. Both parties enjoyed celebrating their rich Greek culture.
The first child of the marriage, M, was born in 1998. She is 15 years of age and currently completing Year 10 at Suburb E High School. M has been attending Greek lessons at the Suburb E High School since commencing year seven.
The second child of the marriage, D, was born in 2002. He is twelve years of age and currently completing Grade Six at WG Primary School. In May 2013, D was attending Greek Community School at Suburb CD on Friday evenings in a class taught by the mother.
The parties separated finally on 16 November 2008 after eleven years of marriage.
Prior to separation the two children were primarily cared for by the mother and the family was financially supported by the father who was in full-time employment.
The parents’ separation on 16 November 2008
The circumstances of the separation are contentious. On 16 November 2008 the parties engaged in a vitriolic argument in the presence of their daughter, M, which involved the mother telling the father that she could have put rat poison in his food and that she would be a “triple murderer” that day. There is disagreement about what then occurred. The mother says she began cleaning up the kitchen and then stood in the corridor with a knife in one hand and a tea towel in the other, waving her arms up and down consistently with her agitated state. The father’s version was that he and M interpreted the mother’s actions as threatening behaviour and he left the house with the children. The mother has consistently stated that the incident was misinterpreted.
The father went to a friend’s house and called the police. The police attended the family home and the mother accompanied them back to the police station. The mother emphatically denied having been a threat to the father or the children. An intervention order was obtained by the father on 18 November 2008 which resulted in the mother leaving the family home where the children remained residing with the father.
M was nine years and eleven months old and D was five-and-a-half years old when the parents separated.
The father took the children to see Ms G, a psychologist, only a few days after the parties separated. The father was referred to Ms G by Ms E, another psychologist in the same practice who the father had been seeing. The mother was not consulted on whether the children could or should be assessed by a psychologist. The psychologist did not see, or require to see, the mother. The children told Ms G that their mother had tried to kill them and M described a past incident where the mother had allegedly physically abused D in the bath. In his subsequent reasons for judgment on 24 December 2010, Cronin J was critical of Ms G for believing everything she was told by the children on this occasion without conducting any reality testing, and, in turn, exacerbating the children’s problematic relationship with their mother.
Federal Magistrates’ Court proceedings in 2008
The mother commenced proceedings in the Federal Magistrates’ Court (as it then was) in December 2008. On 22 December 2008 Federal Magistrate O’Sullivan (as he then was) made orders for the mother to spend time with the children in the presence of her sister, Ms K, and a friend, Ms S. The parents were ordered to attend Dr W, a psychiatrist, for the purpose of undergoing a psychiatric assessment. It was further ordered that the parties and their children attend Mr O, a psychologist, for the preparation of a family report, and a request was made for an independent children’s lawyer to be appointed. In due course Mr Timothy Mulvany was appointed as the independent children’s lawyer for M and D.
The children first spent time with the mother after separation on 16 November 2008 on Christmas Day 2008 between 2.00 pm and 7.00 pm. The mother’s evidence at the hearing before Cronin J in 2010 was that her time with the children was successful and she produced photographs and video footage of her engaging with the children. The mother again spent time with the children between 2.00 pm and 7.00 pm on 27 December 2008, 1 January 2009, 3 January 2009, 8 January 2009, 10 January 2009 and 15 January 2009 and her evidence was that the time spent together was successful on each of those days. The mother produced further photographs and video footage at the hearing of the time she spent with the children on those occasions, however the father claimed the footage had been “doctored”, a claim that Cronin J ultimately rejected.
At the conclusion of the mother spending time with the children on 25 January 2009 the father collected the children, taped a conversation he had with them in his car and subsequently sought to use the tape as evidence in the parenting proceedings. Before Cronin J, the father sought to justify his tape recording of the children on the basis that no one believed how distressed his children were after spending time with their mother. During the conversation M described an incident that day where the mother noticed M’s mobile phone had fallen from her clothing and having picked it up, M grabbed it back. In his reasons for decision of 24 December 2010, Cronin J described the father’s behaviour as “unashamedly evidence-gathering” and it is apparent that the father’s case was not assisted by the tape recording.
Supervision of time spent between the mother and the children by Mr Z, a supervisor with the Home Access Network, began on 22 January 2009. Mr Z gave evidence at the hearing before Cronin J in 2010, which was accepted. He testified that the children began to withdraw from their mother from 29 January 2009. He noticed them becoming resistant to their mother’s directions on 3 February 2009 and observed their relationship with their mother deteriorate to the point that, on 17 February 2009, the children were not responding to her.
The proceedings were transferred from the Federal Magistrates’ Court to this Court on 8 May 2009 by order of Judge O’Sullivan (as he now is) on the basis that it would be to the benefit of the parties for them to be able to access the less adversarial trial process offered by this Court. The provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth), including the principles for conducting child related proceedings in a less adversarial manner, apply to both courts for all cases issued after 1 July 2006. However, this Court is undoubtedly better able than the Federal Circuit Court (as it now is) to accommodate long running and unwieldy cases such as this case has proved to be.
Family Court proceedings in 2010
The parties were granted a divorce on 9 February 2010.
Parenting, property and child support proceedings were heard by Cronin J over 11 days in July, August and September 2010[15] and written submissions which were concluded on 18 October 2010. Cronin J delivered judgment on 24 December 2010 having had the benefit of evidence by Dr W (psychiatrist), Mr O (psychologist), Dr F (psychologist), Ms G (psychologist), Dr R (psychiatrist), Dr C (general practitioner), Mr Z (supervisor) Ms P (supervisor), Ms J (supervisor), Ms V (supervisor), Ms N (supervisor), Mr K (the mother’s brother in law), Mr OS (the maternal grandfather), Ms OS (the maternal grandmother), Ms K (the mother’s sister), Ms L (mother of children who attend M and D’s school), Ms T (the mother’s friend), Ms S (the mother’s friend), Ms I (the mother’s friend), Ms Prantage Snr (the paternal grandmother), Mr Prantage Snr (the paternal grandfather) and Mr A (the father’s friend).
[15] 19 – 23, 26, 27 and 30 July 2010, 30 and 31 August 2010 and 1 September 2010.
I have already referred to some of his Honour’s observations and findings.
Dr W’s psychiatric assessment of the parents
Both parties attended Dr W for a psychiatric assessment. He subsequently prepared a report dated 20 February 2009[16]. In 2010, Cronin J accepted Dr W’s evidence but commented that the report was of limited assistance to him because of the effluxion of time since it was prepared.
[16] Dr W’s report was annexed to his affidavit affirmed 17 September 2009.
Dr W reported that the father described the mother as sensitive and caring, but prone to outbursts of rage and impulsive behaviour with threats to harm herself, her father and the children. The father told Dr W that he believed the mother had issues with self-esteem, insecurity and a “tendency to see him as dominating her, and not providing her with enough attention and support”. The father also described issues during the marriage in relation to his father-in-law and stressful times following the birth of M and while the parties were building their own home in 2006. Dr W reported that the father described himself as having been closely and consistently involved in the care of the children.
Dr W diagnosed the father as having had an Adjustment Disorder with Anxiety at the time of the 16 November 2008 incident which condition had since settled. He stated that the father appeared to be “the more stable of the two parties”. Dr W reported that the father remained mistrustful of his mother and her parenting capabilities. He stated “the degree to which the children have picked up his anger and mistrust of their mother is unclear, but is quite possible in my opinion”.
Dr W went into much greater detail in regards to his assessment of the mother and her description of the marriage. He reported that the mother believed she had more to offer the children than was provided for in the current arrangements and that the children would settle with time. The mother disclosed feeling depressed following the difficult birth of her first child. The mother reported attending her general practitioner and to taking antidepressants on prescription for a period of time in 2004 despite asserting to Dr W that she was “never clinically depressed”. The mother told Dr W that there were frequent arguments between her and the father during the marriage, some of which also involved her parents and the father’s parents. She reported experiencing panic attacks and chest pains in the weeks leading up to the events which culminated in the intervention order against her. Dr W stated that the mother described herself as having previously lived her life “in the service of her children and family” but had since been focusing on her own health and wellbeing.
Dr W stated in his report that the mother “is a woman of considerable emotional insecurity”. He described her “intensity, emotional neediness, impulsivity and at times, lack of control” as consistent with borderline traits in her personality. Dr W also diagnosed the mother as having a Chronic Anxiety Disorder and stated his belief that the mother’s insight was limited. His opinion was that while the mother “recognises a need to learn to manage her emotions more effectively through psychological counselling”, she remained fixated on the father’s alleged insensitivity to her and her feelings of having been dominated by his parents. Dr W stated his belief that the mother’s emotional tension and anger at her father would decrease given the parties had separated. He also thought she could likely manage the children more appropriately but recommended that the mother attend ongoing psychological and psychiatric treatment until she could come to a more trusting relationship with the father and the children.
Mr O’s (psychologist) family report
The parties also attended Mr O and he prepared a family report dated 24 February 2009[17]. At the time of preparing the family report, Mr O had not had the benefit of having read the psychiatric assessment of the father and the mother conducted by Dr W.
[17] The family report of O was annexed to his affidavit sworn 17 September 2009.
Mr O saw the family on 10 February 2009. He reported that the father presented as distressed and traumatized by the 16 November 2008 incident and was worried about his children’s welfare. The father alleged that the mother was frequently violent and aggressive and was prone to emotional outbursts. The father told Mr O that he had become concerned for the children’s safety and that the mother had put them at risk on occasions prior to the events which culminated in the breakdown of their marriage.
Mr O reported that the mother presented as agitated, however she was much more settled and calm when he observed her with the children even though the children acted very angrily and uncooperatively towards her. Mr O reported that the mother perceived herself as the victim of the father’s false allegations. She described the disagreement she had with the father on 16 November 2008 as being the climax of her dissatisfaction about his lack of communication and lack of support and assistance around the house.
Mr O stated that the mother was very concerned about the deterioration in the children’s behaviour since a professional supervisor had become involved. She told Mr O that the children had become rude, aggressive, verbally and physically abusive to herself and members of her family, and that more recently the children had refused to communicate or interact with her at all. The mother vehemently denied being psychologically unwell in the manner suggested by the father and she denied ever having harmed the children or put them at risk.
Mr O reported that both parties described a history of difficulties in their marriage including problems with intimacy, communication, conflict overflowing to members of the extended family and numerous allegations made by each parent about the other parent’s behaviour.
M presented to Mr O as an “articulate but serious girl” who appeared distressed when recounting the events of 16 November 2008 (separation). She described herself as frightened of her mother and alleged that her mother had previously hit D with a belt. M was critical of members of her mother’s family who had supervised the mother’s time and she expressed a desire to spend no time with her mother in the future.
D presented to Mr O as a friendly boy who settled easily but whose level of engagement was “cautious and avoidant”. Mr O reported that “it was difficult to know to what extent [D] was recounting first hand his experience of what happened in the family…and to what extent he was recounting what had been told to him”. Mr O stated that D clearly believed that his mother had attempted to kill him but that he appeared aggressive rather than fearful towards his mother. Mr O identified that D had strongly aligned himself to his father and was clearly connected to his sister.
Dr NZ stated that it would be appropriate to move from supervised time to extended unsupervised visits in the future only if the father “is able to behave appropriately and support the children in healthy ways, including supporting their relationship with their mother and maternal relatives”, but commented that she did not believe it likely that the father would have the capacity to behave in that manner.
Dr NZ’s oral evidence and cross examination
Dr NZ acknowledged that she hadn’t seen the children after their first visit with the father at BS on 9 March 2013.
Dr NZ’s evidence during cross examination by the father included the following:
[DR NZ]: In my last report I say at the end that, you know, a positive outcome would be for a change in attitude in you, [Mr Prantage] and being able to foster the children’s relationship with their mother in a healthy way and that would be a lovely outcome because then I would be able to ‑ ‑ ‑
[MR PRANTAGE]: I’ve never said anything negative, [Dr NZ]?
[DR NZ]: ‑ ‑ ‑ help their mother start to talk about how that might happen outside of [BS] and unsupervised time and things like that and I’ve always talked to the children about what should be, and help them to look around at other families and see what other separated families are like and why their family can’t be like that. So it’s about eventually one positive option is moving towards unsupervised time and a reasonable relationship and a healthy relationship with both parents. If not, then I know that the last three visits have been conducted under the timing around this court event and I wonder about how much that has got to do with the behaviour that’s being observed there and that, as I put in my report, that I have some doubts about [Mr Prantage’s] capacity to move in that healthy way and that I would suspect some of the behaviours that I’ve seen might come out and that’s really good for the children to see. Even if he hasn’t changed, if the children see that then I’m able to help them through it and resolve the conflicts between pretending to be nice, if that’s what’s happening versus what he’s really thinking underneath about their behaviour in it. And I would imagine that [BS] will refuse to continue because some of the behaviours is outside the range of what they would consider appropriate.
HER HONOUR: But at this point, if [BS] refuse to continue, you cannot indicate that you would advocate anything unsupervised. It might have to go to nothing?
[DR NZ]: I would – I think there’s two options. Change in attitude, healthy, children move in, a positive thing ‑ ‑ ‑
HER HONOUR: Yes, assume that might not happen?
[DR NZ]: Okay. Then – then I think [Mr Prantage], unfortunately, has painted himself into a corner in a lot of ways, about that his own behaviour has consequences for the way he goes into the future and that some of that might be that the services around dry. I know there was some discussion about all the supervision – that a supervisor had been used in this family that haven’t been able to participate in this current supervision because there has been poor relationships between [Mr Prantage] and supervisors that have been used in the past with their mother. So there’s just less and less options and it may be nothing in the end.
It was the mother’s case that the one hour of supervised time provided for in the Order of 2 March 2012 was always intended to be part of the therapeutic process for the children and not for the father’s benefit at all. In 2013, Dr NZ stated that she thought the reports of the children’s recent supervised time with the father were very positive and that she had conveyed that to the children. She stated that if the father changed his behaviour and became supportive or encouraging of the children’s relationship with their mother, then the children would question why he was doing it. On the other hand, if the father does not change his behaviour, the children need to go through that experience and hopefully begin to think critically about their lived experience of their mother as compared to what their father tells them about her. Furthermore, Dr NZ stated that she thought that M feels uncomfortable saying negative things about her mother to her father but that that discomfort was beneficial to M’s development.
The mother swore an affidavit on 30 January 2013 and deposed that there had been no changes in the children’s circumstances since the making of the final orders on 2 March 2012 and that her relationship with the children “continues to improve”. Ms Smallwood for the mother asked Dr NZ for her observations of the mother’s parenting skills and management of the situation since the children had been in the mother’s care. Dr NZ’s evidence was that the mother had been compliant with the therapy and with following her advice. Dr NZ said that the mother had been very patient with the children despite their terrible behaviour and while under incredible stress herself. Notably, the maternal grandmother had moved into palliative care simultaneously with the children commencing supervised time with their father. Dr NZ agreed that the children’s mental health had improved over time and that the mother had played a large role in that improvement.
Dr NZ said that in the short term the children might become uncooperative, it would be likely that therapy would be unable to continue, and the children’s schoolwork and weight would probably be affected. She stated, “Your Honour, I already think there’s already going to be damage from (sic) these children. I think what they’ve been through has been terrible, and the longer it goes on the more damage there is.”
I accept Dr NZ’s evidence.
Discussion
In order for the father to re-litigate parenting matters, as he wishes to do, it is necessary for him to satisfy the court that since the final order was made on 2 March 2012 there are circumstances which have arisen which the best interests of the children require that the parenting dispute between the parties must be re-litigated. It is not sufficient that he has a different mindset than he had at the time he did not oppose final orders being made. It is not sufficient if the orders have not worked in the way that he wished providing that the outcome is one that is reasonably contemplated by the parenting arrangement and the best interests of the child do not require or stand to be advanced by the court any other arrangement.
The father does not articulate clearly what circumstances he relies upon inasmuch as he makes general statements such as “whatever [the children have] said in the reports when I have seen them at [BS]”. Doing the best I can with the general comments made by the father about the condition of the children and his accusations against, Dr NZ, my impression is that the father relies on the following circumstances as justification for re-litigating children’s matters at this time in the terms of his application filed on 27 December 2012:
a)The mother does not feed the children adequately and the children are malnourished and hungry. The father describes D as “skinny” and M has said “that’s because she [the mother] doesn’t give us anything good to eat” and D said “She [the mother] gives us chops with all this fat on them.” The children were critical of food served by the mother on celebrations. At the contact visit on 11 May 2013, M complained that “we only had spaghetti for dinner” at Greek Easter;
b)The children are not allowed to participate in interesting activities;
c)The children are confined to the mother’s home on the weekends and do not have a key to get out of the house. At the contact visit on 13 April, 2013, M complained again about having no activities at home and said that “[the mother] just locks us in the house and goes out with her friends for coffee”.
d)DHS received a notification that “the maternal family lock the children in the house and yell at the children all the time…and that the children do not have access to a telephone”;
e)Dr NZ has failed or neglected to report accurately in relation to the children’s views and their physical and emotional wellbeing, in particular, what Dr NZ has reported does not correspond with what the children have told the father;
f)Dr NZ falsely and dishonestly continues to deny that she wrote an email to the mother the text of which was communicated by M to the father;
g)The children want to reside with the father;
h)The children find living in their mother’s home to be intolerable;
i)The children will run away from the mother’s home if required to live with her;
j)The mother has not taken M to music lessons;
k)The therapy which was put in place with Dr NZ is ineffective.
The father’s application is filed just nine months after final parenting orders were sought by consent and made by Cronin J. The final hearing was preceded by a very extensive hearing in 2010, a further interim hearing in June 2011 and contravention proceedings in September 2011. Notably, the resolution provided by the final order represented a continuation of parenting arrangements which were imposed on an interim basis in June 2011 and which subsisted at the time of the contravention proceedings in September 2011.
The father twice filed voluminous material in support of his application which he abandoned entirely on the first occasion and very largely on the second occasion.
The father’s evidence about the children’s inappropriate weight loss and inadequate diet is contradicted by the evidence of Dr NZ who, in May 2013, referred to the children as being healthy and having undergone growth spurts but of appropriate weight. I accept as accurate the following evidence given by Dr NZ on 24 May 2013:-
HER HONOUR: …do they look to you to be malnourished or undernourished?
[DR NZ]: No. They actually – [M] shot up like – had an incredible weight increase, and grew and looked – it was quite remarkable, the physical changes in [M] within months of moving to her mother’s care. And I ‑ ‑ ‑
HER HONOUR: What about now, say for 9 March?
[DR NZ]: Now? Now fine. They both look very healthy. [D] has grown. They both look healthy.
HER HONOUR: So if seeing them on 9 March the father thought that they were skinny to the point that they must have been exercising too much or working out ‑ ‑ ‑?
[DR NZ]: No, your Honour.
HER HONOUR: Right. Thank you?
[DR NZ]: They’re healthy children.
The father’s perceptions are also contradicted by the mother’s evidence in her affidavit of 25 January 2012 where the mother deposed that the children were gaunt and unhealthy when they came from the father’s household and into her care, that it was necessary for her to treat M for severe head lice and that she “had fed them up”. Twelve months on, in her affidavit sworn 30 January 2013, the mother deposed at paragraph 12 that the children were both in good health and had both received good school reports. The father’s evidence is also contradicted by the evidence of Ms LS, protective worker, from DHS who has very recently observed the children herself and has had the children assessed by a paediatrician.
At a hearing on 21 May 2014, I received evidence from a protective worker, Ms LS, from DHS. She was responsible for DHS’s investigations into the 11 notifications made about the children since May 2013. In correspondence from DHS dated 20 May 2014, Ms LS provides the following details of visits undertaken by DHS in the course of its investigation:
19 December 2013 Unannounced visit to the home of [Ms Prantage] and the children
27 December 2013 Planned meeting with Mr Prantage at the [Suburb P] office
15 January 2014 Planned home visit to [Ms Prantage] and the children at home
28 January 2014 Planned visit to paternal grandparents and [Mr Prantage]
4 February 2014 Professionals meeting at Department of Human Services office in [Suburb P] with [WG] Primary School and [Suburb E] High School
14 February 2014 Meeting between Principal Practitioner, [Ms PY], and [Dr NZ]
19 March 2014 Visit to [M] at school
28 March 2014 Unannounced visit to [Ms Prantage] and the children by Principal Practitioner
3 April 2014 Unannounced home visit to [Ms Prantage] home and visit with maternal grandfather
4 April 2014 Urgent outreach visit to M at school and attendance at the [A Hospital] (Child and Adolescent Mental Health Team) following receipt of email from [M] expressing suicidal ideation
22 April 2014 Visit to [M] at School
22 April 2014 Office visit with [Mr Prantage] and [Mr Prantage Snr]
24 April 2014 Office visit with [Ms Prantage]
14 May 2014 Unannounced Home Visit of [Ms Prantage] and children by Principal Practitioner at 8.30 pm
Ms LS wrote that “unannounced home visits to the home of Ms Prantage were routinely conducted in the late afternoon with the earliest visit being at 3.45pm and the latest attendance at 8.30pm.” and that:-
In addition to these visits and meetings there were numerous telephone and email contacts with [Dr NZ]; [WG] Primary School; [Suburb E] High School; [M]; [BS] (Contact Centre); and the Department of Human Services also sought information and/or clarification of information through contact with the Heidelberg Magistrates Court; Victoria Police and the Family Court of Australia. A review of information held in Department files in relation to the children was also undertaken.
In the correspondence, Ms LS, concluded:
Throughout the course of this investigation no evidence has been found to indicate that [Ms Prantage] has placed her children at risk of harm through any action, or inaction on her part.
The Department of Human Services holds concerns that there is a strong likelihood that the children have experienced cumulative emotional and psychological harm through the ongoing conflict between their parents in relation to where they reside.
At this time the Department of Human Services does not intend to issue a protection application in relation to the children and has sought a paediatric assessment of the children with [Dr. HS], who is currently on conference leave, but who will conduct it upon her return. The Department will hold a protective planning meeting with those involved in the children’s care, to ensure there is a comprehensive safety plan in place for [M] and [D].
Ms LS also gave evidence about an incident which occurred on 4 April 2014. Her evidence was that M had sent an email to DHS stating words to the effect that ‘she felt she had nothing to live for if she couldn’t live with her father’. She and the mother took M to the A Hospital for an urgent assessment. It was in this context that I granted leave to the father to subpoena the A Hospital’s records of M’s attendance at the hospital on 4 April 2014 and for the parties to file written submissions.
The mother’s submissions about the A Hospital records refer to the risk assessment of M being one of minimal acute risk and that ‘M continues to endeavour to assist and support the father’s assertions’. The hospital records suggest that M sent the email to DHS for that purpose. That is, to produce evidence for the father. I accept that is the case.
I have already mentioned the fact that the father’s submissions were essentially an invective against Dr NZ and discounted the evidence of DHS as unlikely to be true as it was consistent with the observations of Dr NZ.
The father had an opportunity to cross examine the protective worker from DHS and did so. Her evidence was not shaken in any respect. I accept the evidence given by the protective worker as accurate and current.
Consideration of the interest of the children is a precondition to the s 118(1)(c) order sought by the mother. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence –
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[20]
[20] Family Law Act 1975 (Cth) s 60CC(2)(b)
In this case both of the primary considerations are relevant. Both of the primary considerations require a prospective assessment.
The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. I will have regard to relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the children what benefit that may flow from having a meaningful relationship with both parents and so as to ensure that they are protected from harm and exposure to abuse, neglect or family violence.
In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.
The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[21] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer[22] and I do so. In this case, that is principally the parents and Dr NZ.
[21] Family Law Act 1975 (Cth) ss 60CD(2)(a), 62G(2) and 62G(3A), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[22] Family Law Act 1975 (Cth) ss 60CD(2)(b), 62G(2) and 68LA(5)(b), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
M and D are children who have endured a very high degree of parental conflict which has been unrelenting for the last six years and very likely pre-dated the parents’ separation in November 2008. I accept Dr NZ’s evidence that the children lack “perspective”. I accept that the children are very likely to make negative statements about the mother as a consequence of the father’s previous conditioning of them, as means of securing the father’s affection and approval and to conform to what they understand to be his expectations of them. Furthermore, D takes his lead from M.
I accept that the children uttered the words attributed to them in the BS reports but I do not accept that the statements are accurate or based on fact. I do not accept that the children are not adequately cared for by the mother, although I recognise that the children have been emotionally compromised by parental conflict and it is not within anyone’s ability to reverse some of the psychological damage that each child has suffered and will carry within them into adulthood.
I consider the nature of the children’s relationship with each of the parents and other persons inclusive of grandparents and other relatives.[23] I accept Dr NZ’s opinion that the children are very close to the husband but not in a healthy way. Her evidence is that M and D are inappropriately aligned with the husband and that their relationship is one of enmeshment rather than nurturing. Much work needs to be done on the children’s relationship with the wife but I am satisfied that the wife is the most capable and safest parent.
[23] Family Law Act 1975 (Cth) s 60CC(3)(b).
I consider the children’s relationship with one another. Dr NZ’s opinion, which I accept, is that M dominates D to an extent that D’s emotional well being is compromised. I accept that the children have an affectionate and close relationship with the paternal grandparents but I have no confidence that the paternal grandparents are capable of acting in any way contrary to what the father perceives to be appropriate.
I consider the extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child.[24] There have been child support proceedings.
[24] Family Law Act 1975 (Cth) s 60CC(ca).
The father deposed in his affidavit sworn 29 October 2012 that he had been assessed by the Child Support Agency as having to pay $1,592.67 a month to the mother for the support of M and D. The father deposed that once the former matrimonial home was sold, he would be required to pay rent and therefore he could only afford to pay $0.90 per day in child support. In her application in a case filed 11 December 2012 the mother sought an order that the father pay the amount of child support as assessed by the Child Support Agency. In her supporting affidavit sworn 11 December 2012 the mother deposed that it was her understanding that the father was still in full-time employment, would soon receive an annual bonus of $11,000 and planned to begin living with his parents. The mother deposed that she disagreed that the father was unable to support himself and meet the child support assessment.
At the first mention of this matter before me on 13 March 2013, there was the following interchange in relation to child support:
HER HONOUR: And what’s your income?
[MR PRANTAGE]: It’s approximately $78,000 after all the salary sacrifices.
HER HONOUR: And what are – before the salary – if your job was advertised in the newspaper, right, what would it be advertised at?
[MR PRANTAGE]: It would be advertised as $120,000.
HER HONOUR: So I take it it’s a fulltime job.
[MR PRANTAGE]: Yes.
[…]
HER HONOUR: Sorry, can you just answer my question. Are you paying child support?
[MR PRANTAGE]: Not at the moment because I simply cannot afford it. There’s nothing left.
HER HONOUR: Well, you’re getting $120,000 a year.
[MR PRANTAGE]: That’s not correct. The take-home pay is not that much. That’s my full salary including superannuation, salary sacrifice and a vehicle.
HER HONOUR: Right. Okay.
[MR PRANTAGE]: The take-home pay
HER HONOUR: So you’re getting $78,000 and you can’t afford to pay any child support.
[MR PRANTAGE]: No, I cannot, your Honour. I’m paying a $250,000 loan which I have to pay and $2,000 of rental a month. It’s impossible. I’m left with $100 a week in my pocket.
HER HONOUR: Does your wife have a lot of income such that she doesn’t need child support?
[MR PRANTAGE]: She has a lot of income, but they hide it through their family trust.
HER HONOUR: Right. How does she get her income?
[MR PRANTAGE]: It’s through rental properties. They’ve got umpteen rental properties. They’ve got a winery overseas which they bring money into the country legally - legally, I’ve got no idea. And they make more than $150,000 to $200,000 a year and they hide it.
HER HONOUR: Is there an assessment for child support at the moment?
[MR PRANTAGE]: There has been, yes, and I’ve appealed that.
HER HONOUR: Is there an assessment? Can we just get this straight
[MR PRANTAGE]: Yes, there is.
HER HONOUR: ---that when I ask a question that’s the one you answer, not you don’t answer some other question that you want to.
[MR PRANTAGE]: Yes, there is.
HER HONOUR: Right. And what’s it for? How much does it say you ought to pay?
[MR PRANTAGE]: It’s nearly $1900 a month.
HER HONOUR: Right.
[MR PRANTAGE]: That’s impossible. If that happens, then I cannot afford to pay
HER HONOUR: Not if it happens; it is in place. You’re just not paying it.
[MR PRANTAGE]: Well, I physically can’t.
HER HONOUR: Right. What’s the loan of $250,000?
[MR PRANTAGE]: That’s the loan that I’m - my parents took out that I’m the guarantor for that I’m paying. Otherwise, they lose their home.
HER HONOUR: What’s going to happen to the $600,000 of clear funds from the property that’s just settled?
[MR PRANTAGE]: I’ve got no idea. That becomes apportioned when the property matters are settled, I guess.
On 15 August 2013 the father swore an affidavit in support of an application for a stay of his child support liability. He deposed, inter alia, as follows:-
9.Under the Natural Law of Justice, it deals with the role of a philosophy of natural law in our efforts to overcome the moral crisis of democracy. I cannot be made homeless, effectively without a roof over my head in order to meet my CSA obligations where it is not physically and financially possible as my debts, not including my CSA payments, far outweigh my current income
10.I am applying for an IMMEDIATE STAY OF ORDERS against the Child Support Agency until such time as the financial/property matters in this case are settled by the court whereby I will then be able to fulfil my Child Support obligations.
11.Without this Stay of Order, the Child Support Agency will issue recovery via my employer which will mean that my salary will be garnished and therefore I will not be able to afford the rent or the monthly repayments for my personal loan to my parents. This will result in myself and my parents being quite literally left out in the street.
12.The Child Support Agency have given me until the end of August to obtain and lodge with them this Stay of Order, otherwise they will instigate recovery proceedings with my employer which will definitely result in myself and my parents being left out in the street.
On 30 August 2013 I refused the father’s stay application. I understand that, since then, the father has been paying child support as assessed. As at August 2013, the mother said that the father was some $15,555 in arrears of child support inclusive of $600 in penalties.
My impression is that the father is not prepared to make life easy for the mother in any way, including providing economic support for the children in her care. He is paying now because his salary is garnished in favour of the Child Support Agency.
In determining what is in the best interests of the children, I consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs.[25] Relevantly for this application I am not satisfied that the father’s capacities have been in any way enhanced since the final parenting orders were made in March 2012. I accept Dr NZ’s evidence that it is unlikely that the father will change notwithstanding that he has had the benefit of very many psychologists and counsellors including Ms E and Ms G prior to and at separation together with the experts whose evidence I have discussed above.
[25] Family Law Act 1975 (Cth) s 60CC(3)(f).
I accept Dr NZ’s assessment of the mother as compliant and receptive to advice and as doing all that she can to nurture the children in very difficult circumstances. I am confident that the mother will continue to do so into the future.
I consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents[26] and conclude that there is no evidence on which I can be satisfied that there has been any improvement in the father’s attitude to parenthood. He is still consumed with trying to undermine the children’s relationship with the mother with all of the catastrophic implications that entails for the children emotionally and developmentally.
[26] Family Law Act 1975 (Cth) s 60CC(3)(i).
I consider whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children.[27]
[27] Family Law Act (Cth) s 60CC(3)(l).
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms. I am satisfied that the father has instituted further proceedings to reverse parenting arrangements without demonstrating any change in circumstances.
In 2013, Dr NZ opined that if the father were to succeed in his current application and the parenting matter was re-opened it would be a terrible outcome for the children. She stated:
…being caught up again in more evidence gathering, more lying, more deceit, more focus on the parental dispute, more alignment with their father’s position rather than thinking independently, I wonder about how these children would turn out and what sort of adults they would make, and what damage they would take into the future and their future relationships from that. I see most of their childhood being affected by the court case, and the things that have happened to them. And I don’t want their adolescence to be like that; I would hope it would be something more – something about developing independence, and developing different skills and strengths, rather than being focused on these matter.
I accept Dr NZ’s evidence in that regard and accord it considerable weight.
Conclusion about change in circumstances
I am comfortably satisfied that there has been no change in circumstances which warrant or, based on the authorities to which I earlier referred, would permit of the parenting proceedings being re-opened and re-litigated at this time. I am also satisfied that it would be deleterious to the children to allow further parenting proceedings at this stage.
I am satisfied that, absent an enormous change in the father’s attitude and behaviour, further parenting proceedings will be of no benefit to the children and will provide the father with a platform to try to draw the children away from whatever constructive life the mother can build for them and into father’s self-centred existence in which the healthy emotional development of the children takes a back seat to his need to dominate the children, marginalise the mother and to exclude her from a meaningful relationship with them.
It follows that the father’s application filed 27 December 2012 must be dismissed.
For the avoidance of doubt, I have considered whether to accede to the father’s application insofar as he seeks an immediate cessation of Dr NZ’s role as family therapist. I am satisfied that it is not in the best interests of the children to make that order at this stage.
Discussion on s 118(1)(c) injunction sought by wife
I now consider whether the father ought to be restrained, in terms of section 118(1)(c), from instituting proceedings for parenting orders without leave of a court having jurisdiction under the Act. I can only make such an order if I am satisfied that the father’s application, which I have just dismissed, was frivolous or vexatious.
I am satisfied that the father’s allegation about the email supposedly emanating from Dr NZ is as unfounded as it is misguided. Further, the father’s persistence with the allegation in the face of Dr NZ’s denial, sworn evidence and lack of any probative evidence to support it, is vexatious. My impression is that it is a hostile reaction by the father to being confronted with expert evidence which he cannot accept or may even lack the insight and objectivity to assess and understand. That is a serious shortcoming of the father because Dr NZ’s focus is actually the welfare of the children rather than on his welfare and, by virtue of the father ignoring Dr NZ’s assessment, he denies the children the benefit of it.
The father’s persistence with the allegation has also had the consequence of M continuing to be drawn into the conflict between the parents and between father and Dr NZ, who is the therapist of the children. This was demonstrated, poignantly, by the father’s evidence that M warned him most earnestly on the second contact visit at BS Contact Centre that “if you don’t stop saying that false email is true, contact will be stopped”. Notably, the father’s own evidence of what M whispered to him described the alleged email as “false”.
There are other matters, quite apart from the father’s unsubstantiated allegations against Dr NZ, which lead me to conclude that the proceedings brought by the father are without foundation and vexatious. These are, in summary:-
a)The final order which the father seeks to reverse was sought by consent at a time when the father was represented by lawyer and counsel;
b)I do not accept that the father’s assertions that he was bullied by Ms Benjamin of counsel into consenting to the final order and am satisfied that he made this assertion to deflect the point, well made, that it was a consensual resolution of the matter;
c)The father twice sought to support the current application with voluminous material which he then abandoned or largely abandoned but not before the mother incurred very considerable expense in having her lawyers read everything he relied upon it and formulate objections to it;
d)Much of the material relied upon by the father in support of the application pre-dated the final order and, self-evidently, did not constitute a change in circumstances;
e)In seeking to rely on the statements which the children made to him during three supervised visits and the alleged email from Dr NZ, the father has demonstrated that he accepts and acts upon utterances by the children without appropriate scrutiny or any analysis of how likely the statements are to be truthful or accurate.
Looked at most favourably for the father, these proceedings have been imprudent and an unnecessary and unjustifiable drain on the personal and financial resources of the mother and the resources of the court. At its worst, it was an application that was doomed to fail but which was made so as to discombobulate the mother and cause her to incur legal fees unnecessarily and/or to distract Dr NZ and the children from their therapy. In any event, they are proceedings which should never have been brought or pressed.
I am satisfied that the proceedings taken by the father, which I have dismissed, were vexatious. I am also satisfied that the mother incurred considerable expense responding to that application which, whilst doomed to fail, she could not afford to ignore. In my view, it is entirely appropriate that the father now be required to obtain leave (permission) of a judge of this court prior to initiating any further proceedings for parenting orders.
Conclusion in relation to section 118(1)(c) application
I have found that there is no sufficient change in circumstances or new matters which have arisen since the last parenting order was made in March 2012 which justify permitting the father to proceed this new application, in which he seeks to reverse parenting arrangements for M (aged 15 years) and D (aged 11 years). I am satisfied that it would be contrary to the best interests of both children to permit him to do so and I have dismissed the application accordingly.
I am satisfied, that the proceedings taken by the father were vexatious within the meaning of s 118(1)(c) of the Act.
I consider that it is appropriate that the father shall not, without leave of the court, be able to institute parenting proceedings under the Act and I will order accordingly.
I will accede to the mother’s application under s 118(1)(c). This will not preclude the father seeking to bring parenting proceedings but it should minimise inconvenience and expense for the mother until such time as a judge has scrutinised the father’s proposed application and discerned, by reference to evidence to be relied upon, that the application is not reckless, careless, without foundation, nonsense or, indeed, vexatious.
Costs
Each party seeks an order against the other for indemnity costs. Both parties should have the benefit of reading these reasons before deciding to press his or her costs application and in order to formulate a concise argument for, or against, an order for costs being made. I will require submissions in writing as to costs within a timeframe and, given the father’s tendency to be prolix, be limited to a certain number of pages.
The wife sought other orders as to payment of costs. These were not matters on which I received submissions so the parties ought to make submissions in that regard at the same time as they make submissions about the costs of this proceeding.
The father required Dr NZ for cross examination in May 2013 so he should be responsible for payment of the reasonable costs of her attendance. The hourly rate of $400 is reasonable and my notes indicate that Dr NZ was occupied for not less than 4.5 hours.
Future conduct of the matter
The orders which I make today limit the entitlement of the father to make application for child related orders and only so as to require that he obtain prior leave of the court to do so.
Last week I made an order which had the effect of attaching a power of arrest to injunctions which, inter alia, prevent the father coming into contact or communicating with the children. That order remains extant and enforceable as does the order for costs made on that day. The husband stated that he would appeal my decision, as is his entitlement. However, unless or until there is appellate intervention or the orders are stayed, or otherwise set aside or discharged, they remain enforceable.
If the father seeks to make application to vary or discharge the power of arrest provisions, in my view, that application would be an application in which he would be required to seek leave.
The father’s entitlement to make applications in relation to financial matters is unfettered. The re-hearing of the property proceedings awaits hearing before me on 21 October 2014.
My determination of the disqualification issue raised by the father is only final in relation to the father’s assertions about what was said and done in a certain respect on 27 May 2013 but not otherwise.
In the event that that either party wishes to make an application that I disqualify myself from hearing the remainder of the litigation on the basis of this decision or otherwise, it is preferable that they do not delay in doing so. Delay in making any such application may on one outcome have the effect of delaying the disposition of the property case.
Any party who wishes to make application for me to recuse myself notify my associate and the other side accordingly whereupon I will relist the matter to take submissions. I do not require a formal application but do require cogent submissions.
I certify that the preceding two-hundred-and-forty-seven (247) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 July 2014.
Associate:
Date: 23 July 2014
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