Redmond and Stolz (No 3)
[2015] FamCA 692
•21 August 2015
FAMILY COURT OF AUSTRALIA
| REDMOND & STOLZ (NO. 3) | [2015] FamCA 692 |
| FAMILY LAW – CHILDREN – Final Orders – Best Interests – Where the father seeks orders that he have sole parental responsibility for the child, that the child live with him and spend regular weekend time with the mother and that the child be removed from the school that she attends – Where the father pursued litigation against the child’s school and was found in contempt of the Supreme Court for breaching Court Orders – Where the evidence shows that the child enjoys going to that school and is achieving at a high level in her academic performance – Where it is found that the father has engaged in family violence – Where the child is at an unacceptable risk of emotional and psychological harm in the father’s unsupervised care – No order made to move the child from her school – Order that the mother have sole parental responsibility – Order that the child continue to live with the mother and spend time with the father supervised until the mother, or Court, determines that time should be unsupervised. FAMILY LAW – PROPERTY – Final Orders – Just and equitable – Where the father seeks property adjustment orders pursuant to s 79 – Where the father is an undischarged bankrupt – Where the trustee in bankruptcy is an intervener in the proceedings – Where the non-exempted property of the father vests in the trustee in bankruptcy – Where it is found that the property pool should be divided as 75 per cent in favour of the mother and 25 per cent in favour of the father – Where the father has already had the benefit of property from the pool – Where it is found that the father is entitled to a further payment of $3,500 which will immediately vest in the trustee in bankruptcy. FAMILY LAW – PROPERTY – Superannuation – Where the father seeks a superannuation splitting order – Where superannuation interests are exempted property for the purposes of bankruptcy in property adjustment proceedings – No order made. FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious Proceedings Order – Where the mother seeks a vexatious proceedings order against the father pursuant to s 102QB – Order prohibiting the father from instituting proceedings under the Family Law Act 1975 (Cth) against the mother or in relation to the child without leave of the Court. |
| Bankruptcy Act 1966 (Cth) Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Family Law Act 1975 (Cth) |
| Baumgartner v Baumgartner (1987) 164 CLR 137 |
| APPLICANT: | Mr Redmond |
| RESPONDENT: | Ms Stolz (formerly Redmond) |
| INTERVENER: | Official Trustee in Bankruptcy The Bankrupt Estate of Mr Redmond |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Dooley |
| FILE NUMBER: | BRC | 4493 | of | 2011 |
| DATE DELIVERED: | 21 August 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 29, 30 and 31 October 2014 (last written submissions received 5 January 2015) |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr George of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Small Myers Hughes |
| SOLICITOR FOR THE INTERVENER: | Mr Rodgers Rodgers Barnes & Green |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Orders
The Parenting Order
That all previous parenting orders are discharged.
That the child, E born … 2005, (“the child”) shall live with the mother.
That the mother shall have sole parental responsibility for the child but shall keep the father informed in writing of any decision she makes about a “major long-term issue in relation to the child” as that term is defined in s 4 of the Family Law Act 1975 (Cth).
That the child shall spend time with the father at all times as may be agreed between the mother and the father, and, in default of agreement, for two hours each alternate weekend supervised at the children’s contact centre run by Relationships Australia situated at P, in the State of Queensland or at such other children’s contact centre as may be agreed between the mother and the father should Relationships Australia not be able to accommodate the family at its P Contact Centre at any time for any reason.
The father shall pay the costs of the family’s use of the children’s contact centre for the purposes of the child spending time with him.
That the child shall communicate with the father as may be agreed between the mother and the father, and, in default of agreement, then as follows:
(a)By Facetime, or some other internet video call facility, or if such video facility is not available then by telephone, each Wednesday evening and Sunday evening on the weekend the child has not spent time with the father, on the child’s birthday, on the father’s birthday, on Father’s Day, on Easter Sunday and on Christmas Day between 6:00 pm and 7:00 pm with the father to initiate the call;
(b) By email;
(c) By post.
That the mother shall facilitate the child’s communication with the father by:
(a)ensuring that the child is available to receive the father’s incoming call;
(b)using her best endeavours to have the child take the father’s call and to speak with the father;
(c)ensuring the child has privacy to speak with the father during such calls; and
(d)having the child call the father at a subsequent time, if for some unforeseen circumstance, the child misses the father’s call made during the time otherwise designated for such calls pursuant to this Order.
That any and all communication between the mother and the father shall be in writing via email or post and not be by telephone or text message and such communication shall be limited to matters related to the child.
That consistent with the mother having sole parental responsibility for the child, the mother shall determine what school the child attends at any time and the mother shall provide the father with copies of the child’s school reports, school photographs and any certificates or awards obtained by the child from the school.
That the father shall be restrained and an injunction issues restraining him from:
(a) Going within 100 metres of the school the child attends;
(b) Going within 100 metres of the mother’s home or place of work;
(c)Publishing, causing or permitting to be published on any internet website any information, comment or remarks about the mother, the child, the child’s school or any of the child’s school’s past, present or future board members, employees, agents or pupils;
(d)Discussing these proceedings or any other Court proceedings in which the father has been or is involved with the child or with any other person in the presence or hearing of the child;
(e) Showing the child any document connected with these proceedings;
(f)Denigrating the mother to the child or to any other person in the presence or hearing of the child.
That the mother shall be permitted to take the child outside the Commonwealth of Australia on the giving of one month’s notice in writing to the father of the planned travel, including details as to the dates of expected departure from and return to Australia and the proposed travel itinerary and should the proposed itinerary conflict with any time the child is to spend with the father pursuant to these Orders, that time shall be suspended until the child’s return to Australia with any time missed whilst the child is away to be made up for by extra visits with the father as soon as can practicably be arranged by the mother, the father and the relevant children’s contact centre upon the child’s return to Australia.
That the Registry Manager of the Brisbane Registry of the Family Court of Australia shall deliver the child’s passport to the mother as soon as that can conveniently be arranged and the mother shall retain that passport in her safe keeping from the time she receives it.
That pursuant to s 68B(2) of the Family Law Act 1975 (Cth), the father is restrained and an injunction is hereby granted restraining him or any person acting as his agent from taking any steps to communicate with the Australian Federal Police so as to cause them to put the name of the child, E born … 2005, on the Family Law Watch List without first obtaining an order from this Court that the child’s name be put on that List.
That the mother shall inform the administration of the school the child attends of the contents of paragraphs (3), (9), (10)(a),(c) and (d) of this parenting Order and, should she and the father agree in writing to a change to the circumstances as governed by such paragraphs, she shall, in writing, solely inform the administration of the school of any such change.
That the mother shall inform the father as soon as practicable of any significant health issue or significant illness suffered by the child.
That the mother and the father shall keep each other informed of their residential and postal addresses, email addresses and contact telephone numbers and any future changes to any of those within 48 hours of any such change.
That the father is at liberty to provide copies of the reports of Dr V, Dr B and Ms S and a copy of my reasons for judgment published this day to any psychiatrist or psychologist or family therapist who he may consult with in the future.
That the Independent Children's Lawyer is discharged.
That Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
The Property Adjustment Order
That upon payment of $3,500 to the Official Trustee from the monies currently held in the trust account of Firm Y on behalf of the mother and the Official Trustee in Bankruptcy (as trustee of the property of the father, Mr Redmond):
(a)That all other vested bankruptcy property of the father (save for his interests in K Pty Ltd and Redmond Lawyers Pty Ltd) be released forthwith and vest in the mother;
(b)That the Official Trustee releases the mother in respect of any and all claims with respect to the vested bankruptcy property of the father;
(c)That the mother releases the Official Trustee in respect of any and all claims with respect to the vested bankruptcy property of the father.
That after compliance with paragraph (20) hereof, any further money held in the trust account of Firm Y on behalf of the mother and the Official Trustee in Bankruptcy (as trustee of the property of the father, Mr Redmond) be paid to the mother.
That for the purpose of the payment of money pursuant to paragraphs (20) and (21) hereof (“the distributions”):
(a) Payment occur within 7 days of this Order;
(b)The mother direct Firm Y to make the distributions from their trust account as provided herein;
(c)That such direction from the mother, accompanied by a copy of this Order, shall be sufficient direction to, and authority for, Firm Y to pay the distributions;
(d)Firm Y are hereby authorised to comply with such direction upon its provision by the mother with a copy of this Order.
That the mother shall retain the following property and financial resources, to the exclusion of and free of any claim by any other party:
(a) Any money paid to the mother pursuant to paragraph (21) hereof;
(b)Her property located at OO Street, Gold Coast in the State of Queensland;
(c) Her interest in the Stolz Testamentary Trust;
(d)The funds already received by her by way of partial property distribution (including money utilised towards the payment of experts for the provision of reports in these proceedings);
(e) Her … motor car;
(f) Her interest in any bank account/s standing in her name;
(g) Her jewellery and her share of her late mother’s jewellery;
(h) The furniture and household items in her possession or control;
(i) Any interest in superannuation that stands in her sole name;
(j)Any right or interest in or to any other property or resource disclosed in these proceedings.
That save and except for:
(a)The property and financial resources dealt with pursuant to the terms of this Order;
(b)The property and financial resources vested in, or to be vested in, the Official Trustee;
(c) The reservation in paragraph (25) of this Order;
the father and the mother shall each retain his or her own property absolutely, including all property of whatsoever description and wheresoever situate of which that party is the legal owner or which is/are in the possession and/or control of that party as at the date of this Order (with each party to retain his or her interests in superannuation to the exclusion of the other) and further, indemnify the other against any outgoings, claims, demands or liability associated with such property, howsoever arising.
That nothing in paragraph (24) of this Order shall be construed as, in any way, releasing any rights or claims which the Official Trustee, as trustee of the bankrupt estate of the father, may have to or in respect of any of the property or financial resources retained by the father pursuant to paragraph (24) hereof.
That each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within fourteen (14) days of being requested to do so.
That in the event that a party refuses or neglects to sign or execute and return a document within fourteen (14) days of presentation to them or a solicitor representing them then pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar of the Brisbane Registry of the Family Court of Australia is appointed and empowered and directed hereby to sign or execute the same in the name of that party upon presentation of such document and an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
Vexatious Proceedings Order
By way of vexatious proceedings Order:
(a)The father is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the mother or the child in any Court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QD of the Act by this Court;
(b)This vexatious proceedings Order does not apply to any appeal from the final parenting and property adjustment Orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 (Cth) or such other time as is permitted by Order of the Full Court.
IT IS NOTED that:
(A)The particular consequences arising from a vexatious proceedings Order are set out in s 102QD of the Act; and
(B)If the father or any other person acting in concert with him wishes to apply for leave to institute a proceeding or proceedings covered by this vexatious proceedings Order, the father or such other person will be obliged to comply with s 102QE of the Act.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Stolz 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 BRISBANE |
FILE NUMBER: BRC 4493 of 2011
| Mr Redmond |
Applicant
And
| Ms Stolz (formerly Redmond) |
Respondent
And
| The Official Trustee in Bankruptcy The Bankrupt Estate of Mr Redmond |
Intervener
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
E Redmond (“the child”) is the only child of Mr Redmond and Ms Stolz. She was born in 2005, during her parents’ marriage and is now 10 years of age.
The Court is required to determine and make a parenting Order that confers parental responsibility for the child, that determines with which parent she is to live, that specifies the times and circumstances in which the child will spend time with the other parent, that provides for the school she is to attend, as well as regulating other parenting matters. The child’s parents cannot agree on any of these things.
In the task of determining the proper parenting Order to make, the Court has been assisted by an Independent Children’s Lawyer (“ICL”) representing and advocating for the child’s best interests. The Court has also had the benefit of considering a large amount of expert evidence about the parents and the family adduced by that ICL.
In addition to their parenting dispute, the child’s parents have not been able to agree how to finalize their financial and property interests and the Court is required to determine property adjustment as between them. This is to be determined against the further circumstance of Mr Redmond being an undischarged bankrupt and the Trustee of his bankrupt estate being an intervening Party in the proceedings.
Finally, the Court is asked by Ms Stolz (“the mother”) to determine that Mr Redmond (“the father”) be made subject to a “vexatious proceedings Order” and prohibited from instituting any further proceedings under the Family Law Act 1975 (Cth) (“Family Law Act”) against her without first having been granted leave to do so.
The proceedings were commenced by the father in the Federal Magistrates Court (as the Federal Circuit Court was then named) in 2011. In November 2013, just a few weeks before the matter was to be heard in a three day trial in that Court, it was transferred to this Court.
I presided over a three day trial from 29 – 31 October 2014. Written submissions in respect of the application for the father to be made subject to a “vexatious proceedings Order” were subsequently directed to be filed and the last of those were received in early January this year.
The responsibility to hear and determine many other difficult parenting and property adjustment matters has restricted my capacity to devote attention to the consideration of this matter and the preparation and delivery of written reasons for judgment before now. I appreciate this delay may very well have caused concern for the parties and added to the stress they are doubtless already experiencing being involved in such high, post-separation conflict. That is regrettable. It is hoped delivery of this judgment will enable them to move on with their lives and the parenting of the child with greater certainty.
Some Relevant History
The mother and the father became known to each other in 2002. They were both solicitors, aged in their mid-twenties. The mother worked and lived at the Gold Coast. She lived in her own home that she was paying off. The father lived in the western suburbs of Brisbane in his own place that he was paying off. He began his own legal practice around the time they met.
The couple started dating soon after they became acquainted and then developed an intimate relationship. Each stayed over at the place of the other from time to time, usually weekends, over a period of months. The father then moved in with the mother at her home on the Gold Coast. They do not agree on the timing of the actual commencement of their cohabitation.
The father asserts that they started living together in January 2003. The mother asserts that after the couple agreed to marry in mid-August 2003, they agreed the father would move from Brisbane to the Gold Coast and move in to live with the mother in her property. She asserts he did that in or around early September 2003.
I accept the mother’s evidence about this and reject the father’s evidence. Generally in this matter, I considered the mother to be a more reliable historian and a more credible witness than the father. In particular, in respect of this issue though, the mother adduced evidence of the historical records kept in respect of the Australian Business Number (“the ABN”) of the father’s business. The records reflect the business location of the father’s business to relate to a Northern Territory postcode from December 2000 until March 2003. They then reflect the business location to relate to a Brisbane western suburbs postcode from March 2003 until September 2003. They then reflect the business location to relate to the Gold Coast postcode from September 2003. The mother’s evidence is that the father lived and worked in the Northern Territory for a time before she met him, although she is not exactly aware of the dates around that. The mother’s evidence is that the father’s move to live with her at the Gold Coast was around early September 2003, which is the same time as the record reflects the change of registration details of his business to show his business being located at the Gold Coast.
The father said in his evidence that he was operating his business in Brisbane and had to get permission to move it to the Gold Coast. He said that explains the registration showing his business’s location on the Gold Coast from later in the year.
However, as he was not running his business in the Northern Territory during the first months that he was dating the mother in late 2002, it appears that he did not change the business location details on the ABN register until March 2003, even though he was running his business in Brisbane prior to that time. If the father was already living at the Gold Coast from January 2003, a date prior to the amendment of the ABN register, one questions why the historical record would not simply reflect the location of his business to be on the Gold Coast from the time it was amended instead of it recording a six month period of it being located in Brisbane between March and September 2003.
Additionally, there is no dispute that the father sold his Brisbane property in October 2003 with the sale settling in November 2003. These factual matters are far more consistent with the couple agreeing in August for him to move to the Gold Coast and with him moving there in early September, than with him moving there in January 2003.
I am satisfied that the couple started living together as a couple in early September 2003.
At that time, the mother’s property at the Gold Coast was worth $435,000 and she still owed $58,249 in respect of the mortgage debt it secured. She had a four year old motor car and a superannuation interest worth $16,457. The mother’s mortgage debt had been reduced in July 2003 by a payment of $200,000 that her parents had lent to her for the specific purpose of using it to reduce her mortgage debt and associated repayment commitments. That debt was subsequently forgiven by her parents later during the years of the couple’s marriage. No repayments had been made on it in the meantime.
At the same time, the father’s Brisbane property was worth $185,000 and secured a mortgage debt of $94,573. He owned a two year old motor car and had his own superannuation interest worth $12,500.
Accordingly, the mother had $376,751 in equity in her property and the father had $90,427 in equity in his property.
The mother’s evidence, not challenged or disputed by the father, was that the father received around $94,000 net sale proceeds when his property sold. That was used by the father to pay $55,000 in reduction of the mortgage debt on the mother’s Gold Coast property, in addition to purchasing a new car for his use for $27,000 and depositing another $12,000 into the mother’s bank account.
The father commenced running his sole solicitor’s practice from the mother’s property on the Gold Coast after moving in there and continued to operate it from there until September 2005 when he opened an office nearby.
The couple married in mid-2004 and the mother’s parents gifted them $30,000 which was used to pay for their wedding.
The mother ceased work in October 2004 to prepare for the child’s birth in early 2005. She had contributed her earnings as a solicitor from the commencement of their cohabitation until then to the relationship.
The father’s legal practice was not financially successful. His tax returns for the financial years ended 30 June 2004, 2005 and 2006 evidence the following:
Income Expenses Net loss
$54,515 $72,717 -$18,202
$62,193 $72,554 -$10,361
$152,768 $157,849 -$5,081
In his affidavit evidence, the father attributes the successive losses of the business to “monies from [the] business [being] used to make capital improvements to the properties and written off through the business”. He said:
The monies were used to increase and maintain the parties [sic] real assets. There was no other source of the monies for these improvements.
The mother’s evidence is that she sold the property they were first living in together in February 2007. Accordingly, they were living in it during the three financial years listed in paragraph 24 above. The father adduced no other evidence to support his assertions that capital expenditure on the mother’s property was written off through the business. In particular, he gave no evidence particularising in any way the capital improvements said to have been made on that property or the amounts said to have been expended. However, the father did give evidence that the couple could not maintain their standard of living while living together and that they fell into considerable debt due to living beyond their means.
It is hardly surprising that the couple would have gone into debt in circumstances where the father’s business made repeated losses for at least the first three years of their cohabitation, particularly with the mother no longer earning an income after October 2004. I do not accept the father’s assertions that his business used its income to make capital improvements to the property which expenditure was then written off against the business as a legitimate business expense, thus explaining its annual losses.
After the birth of the child, the mother principally cared for her as well as undertaking the majority of the work around the home for the benefit of the family, such as the preparation and cooking of meals, washing up and cleaning up after meals, washing the family’s dirty laundry, cleaning the home, shopping for the family’s groceries, and looking after the family dog. Outside his work commitments, the father did assist the mother to care for the child, to clean up after meals, to put clothes in the washing machine and dryer. He also set up and maintained the home computers.
In February 2007, the couple jointly purchased a block of land on the Gold Coast for $400,000. They caused it to be registered in their names as tenants in common as to 99 per cent to the mother and as to 1 per cent to the father. It was paid for by drawing $160,000 against the mother’s pre-existing line of credit mortgage facility secured by her existing property. They also borrowed a further $240,000 from another bank.
The mother’s other property that was sold around then realised $560,000. They used $160,000 to pay off the line of credit facility and the balance was invested in an account to be used to pay for the construction of a house on the block of land. It was all used for that purpose.
After the property that they had lived in together from 2003 was sold, the couple and their daughter moved in and lived in the mother’s parents’ property, rent free, whilst the house was being built on the block of land they purchased. They lived there for around eighteen months, saving thousands of dollars in rent over that period.
In or around August 2008, the mother’s parents gifted the couple another $50,000. That was used to pay for landscaping and the installation of shutters at their home. The couple borrowed a further $50,000 in late 2009 which they used to build a swimming pool and to pay some of the purchase price of a motor car the mother bought.
The mother returned to part-time work as a solicitor in January 2009 and actually worked for the father’s firm between April and September that year. In October 2009, she went back to work for the same firm she was still working for at the time of the trial in October 2014.
In early 2009, an Application for Enrolment of the child, E, at a private school on the Gold Coast was completed. It was signed by each of the mother and the father and their signatures are said to have been put on the document on 10 February 2009. A credit card payment authority for the payment of the enrolment application fee appears to bear the father’s signature and the date 10 February 2009. An Enrolment Agreement Contract also bears what appear to be the parents’ signatures, dated 7 April 2009. The child started at that school in 2010. It is the same school the mother had attended as a child. She was School Captain in her final year there.
The mother and father also disagree as to when their marital relationship actually ended. The mother’s evidence is that it was on or about 23 June 2010, whilst still living in the family home. She said that the father finally moved out of the property in late February 2011. The mother’s evidence is that the father moved into a separate bedroom shortly after her own mother was diagnosed with cancer. That was in late 2009. She said their relationship continued to deteriorate over the following months whilst she was trying to support her mother through the illness and was dealing with her own grief with little emotional support from the father.
The father maintained that final separation only occurred when he left the home in late February 2011. However, the mother adduced into evidence a number of emails the father had sent to her in 2010 that certainly support a finding that he regarded the relationship as ended. He wrote in February 2010:
If we can come to a financial agreement so I can move on, we can get a divorce …
He also wrote in March 2010:
I’m doing the application now. Do you want me to put your service address …? [reference to the commencement of Court proceedings]
He also wrote in June 2010 under the subject heading “Moving out in July”:
I’m going to get a six month lease somewhere until the end of the year. Starting from July sometime. …
…
As I said last night, I cannot afford to stay in this relationship any longer. …
There were further emails between the couple in the weeks and months after that date, the contents of which are consistent with each of them regarding the relationship as over. They celebrated Christmas that year separately from each other with their own respective family members.
Accordingly, I accept that the marriage relationship was over well before the father moved out of the family home in February 2011. I will, as did the wife, fix it at the time of the father’s June 2010 email. She said that is when she realised that the father had no intention of working through their difficulties and that their marriage was over.
In June 2010, they owned their family home, said to be worth $850,000, a motor car of the mother, a motor car of the father, the mother’s jewellery and the household furniture. The father also had his interest in his law firm. They owed $253,000 as mortgage debt in respect of the construction of the house and pool. They also had their respective superannuation interests. The mother’s interests in two funds were worth around $28,000 and the father’s interest was worth around $25,000.
The couple sold the former family home in December 2011 for $850,000. After the mortgage was discharged and the costs of sale were paid they had $569,573.62 left. That is just a little more than the mother had realised on the sale of her property in February 2007 and it is to be remembered that the mother’s parents had contributed $50,000 to the cost of improving the former family home as well.
By agreement then, each of the mother and father received a “partial property distribution” of $54,978.02 and the balance was invested by the mother’s solicitors in an interest bearing deposit. Later, there was another agreed distribution of $30,000 to each of the mother and the father. Valuers’ fees totalling $7,835.60 were also paid out of this money. As at 1 October 2014, there was $444,184.80 in the interest bearing deposit. Out of that amount, a further $4,000 was distributed to the mother so that she could pay half of the costs of an expert report prepared by psychiatrist, Dr B for the trial.
On 4 April, 2013 the mother purchased another property on the Gold Coast for $398,000. With Stamp Duty and other associated costs of purchase such as mortgage insurance and bank charges, the total cost of buying that property came to $411,197.62. The mother borrowed $40,000 from her father, $363,967 from a bank and met the balance of the costs using money she received from the Child Support Agency that had been obtained by the CSA from the father in respect of his liability to pay child support for the child.
The former family home, sold in late 2011, was occupied by the mother and the child between the time the father moved out and when they moved out on its sale. In that ten month period, the mother had paid the mortgage repayments, most of the rates (some being unpaid between 6 October and settlement), most of the body corporate levies (some being unpaid between 26 August and settlement) and the cost of utilities such as gas, water and electricity used at the property in that time. The mother maintained the property in that period of time also.
The father continued to live on the Gold Coast for some time after the separation but moved to live in an outer northern suburb of Brisbane after commencing a relationship with Ms M, who he was going to marry. They began their relationship in November 2012 and he moved to live with her in her home, along with her four children, in March 2013.
The father continued to operate his legal practice but told the Court he surrendered his practicing certificate to the Queensland Law Society in or around late 2013/early 2014. He simply ceased operating his business at that time. There is no evidence that he sold the practice or any of his files.
In the first six month period after the father moved out of the former family home, the child spent time with him each week for two to three days. On 23 August 2011, a parenting Order was made in the Federal Magistrates Court with the consent of the parties. It provided for the child to spend time with her father from Friday to Saturday one week and from Friday to Sunday in the other week. On 15 December 2011, another parenting Order was made providing for the child to spend time with the father from after school on Thursday to before school on the following Monday each alternate week with transitions happening at the child’s school. It also provided for her to spend half of her school holidays with the father.
When the father moved to live in Brisbane in 2013, another parenting Order was made unsurprisingly changing the time the child spent with the father to every alternate weekend from 7:00 pm on the Friday until 6:00 pm on the Sunday with transitions to occur at Suburb Z. That Order was made by consent. In June 2013, the parenting Order was varied again by consent, to also provide for the mother to have sole parental responsibility for the child’s education including as to the school the child should attend. That Order also expressly provided for the child to continue to attend the school she was attending until further Order.
The father’s relationship with Ms M broke up in extremely tumultuous circumstances on Christmas Day 2013. In 2014, the father subsequently took up residence in on-campus, student accommodation at the University, where he was studying towards a post-graduate qualification in information technology. When the child spent alternate weekend time with the father, from then until May 2014, they apparently stayed in various locations. The evidence suggests they sometimes stayed at the paternal grandmother’s home in the western suburbs of Brisbane and that they sometimes stayed in hotels, including a five star hotel on at least one of the weekends.
For reasons I gave at the time, on 15 May 2014, I made an interim parenting Order varying the existing parenting Order so that the child’s time with her father was limited to two hours of supervised time each week at a children’s contact centre. Ms M provided quite dramatic and concerning affidavit evidence upon which the ICL relied in support of the proposed change to the parenting regime. Indeed, she was ultimately a witness at the October trial and was cross-examined by the father. I will say more about her evidence and its relevance later.
In respect of the competing parenting Orders applications, the mother and the ICL support a continuation of limited, supervised time on a final basis. The mother, however, seeks, in the longer term, a reintroduction of unsupervised fortnightly weekend time for the child with her father, conditioned on the father getting “appropriate treatment for his psychiatric/psychological issues” and his ceasing his “ongoing pursuit and litigation against [the child’s] school.”
The father seeks an Order that the child lives with him and spends regular weekend time with the mother. He also seeks equal shared parental responsibility.
The Father’s litigation and actions against the child’s School
I consider it relevant and necessary to set out some more detail about the relationship between the father and the child’s school.
When the parents each signed the Enrolment Agreement in February 2009, each undertook to pay the required school fees as they became due.
In his June 2010 email to the mother, the father told her that he would still pay the child’s school fees notwithstanding the separation he was informing her of.
However, in April 2011, the father unilaterally emailed the child’s school administration, informing of the couple’s separation, that the mother had elected to take over payment of the fees, and asking could the account be issued in the mother’s sole name. The father received an email back from the school informing him that the school would be happy to do so, subject to confirming the position with the mother.
A little later, the father wrote again to the school. He informed the school that he no longer wanted the child to attend the school, that he could not afford the fees, that his wife was now paying the fees and giving notice that he wanted his name taken off the invoices sent out on the school’s account. He informed the school that he would be seeking an Order from this Court if the mother did not make “alternative arrangements”.
A few days later, the father wrote again to the school, saying that “despite [his] attempts to give notice to the school to have [the child] withdrawn, they have fallen on deaf ears”. He informed the school that he wanted the child to be withdrawn from the school or be enrolled by her mother and the school fees paid by her.
The school Principal replied, writing to both the mother and the father, advising that the school would only terminate the child’s enrolment when the instruction came from both parents.
Regardless of the school’s response, there is no dispute between the parties that from the end of term 1 in 2011, the mother was solely causing the school fees to be paid and the child was still attending the school.
Unhappy with the school’s approach though, the father began to become increasingly aggressive in his position and communication with the school. He wrote to the school Principal in early November 2012 informing the school that the mother or another person had forged his signature on the initial enrolment form and agreement. He went on to clearly assert:
The signature on the documents is not mine, and I did not sign it.
He informed the school that he intended to commence court action straight away to annul the contract if the school was not prepared to cancel the contract.
I am satisfied that the father did sign the relevant documents in early 2009 and that his assertion to the school Principal in November 2012 was false and either recklessly made without regard for its falsehood or knowingly falsely made. Without going into all of the evidence about the issue, at trial the father gave inconsistent evidence about his claim in this respect. He seemingly tried to rely on an assertion that he could not remember signing the documents and, therefore, simply assumed that his signature was forged. I was troubled about his evidence in answering questions about his state of mind on this issue. I considered his answers to be evasive and given in a way that the father probably thought might somehow excuse his previous assertions and sworn evidence that the mother had forged his signature or caused his signature to be forged on those documents, when he knew that was not correct.
Given that the father was not paying the school fees and had not been paying them since the end of Term 1 in 2011, I fail to understand the need for this aggressively dishonest approach to the school. Unfortunately, for all concerned, things spiralled quickly downwards from there. From here, the father continued with a course of conduct that sadly and seriously brings into sharp focus questions about his mental health, his insight and his character. As an aside, I observe that it is indeed appropriate that he surrendered his Solicitor’s Practicing Certificate at the time, as I am quite satisfied that his subsequent conduct would have otherwise culminated in disciplinary proceedings that would have resulted in his being disqualified from practice in any event.
After the school Principal informed him that the school would consider the enrolment contract valid “until a court order decides otherwise” the father commenced proceedings in the Queensland Civil and Administrative Tribunal (“QCAT”) in which he alleged he had suffered loss and damage due to the school’s refusal to terminate the enrolment contract. He sent more letters to the school in which he threatened the Principal with publication in the press of the QCAT decision that he expected would go in his favour. He referred to a complaint he said he had made to the Competition and Consumer Commission about the conduct of the school and the fact that he would be seeking that the ACCC publish its findings. He told the school Principal that he regarded the school’s conduct as reprehensible and informed him that he would take whatever action was necessary to ensure other parents were not affected by the school’s behaviour.
The father also began to make complaints and to threaten the school that he would make complaints about it to the Non-State Schools Accreditation Board, the Information Commissioner, the Department of Child Safety and the Queensland Police. He delivered to the school a Notice of Claim in respect of alleged personal injuries he had suffered by the school’s alleged breach of contract “forcing [him] into [this Court]”. In that document he said his injuries were “Adjustment disorder, depression, insomnia, anorexia and weight loss”. He delivered to the school another Notice of Claim on behalf of the child, E, in which he alleged that the school had caused an injury to the child when she alighted from the mother’s car at the campus one day. The child had fallen over and broken her arm. The father was not even there at the time. Her mother asserted it was simply an accident and absolved the school of any blame.
The father made criminal complaints against the Principal and threatened to make other criminal complaints against the Principal and the school for actions in respect of the child done without his express consent. He commenced proceedings in the Federal Magistrates Court seeking declaratory relief in respect of the contract with the school, $750,000 in damages and $1,100,000 in pecuniary penalties for alleged breaches of consumer law. He asserted to QCAT that the school Principal had perjured himself in proceedings before that Tribunal.
Amongst the relief the father sought from QCAT was confirmation of what he considered was his right to publish contents of documents filed in or provided to QCAT in the proceedings in that Tribunal and to publish details of oral evidence given in the Tribunal. He also made it clear to QCAT that he wanted to publish his views about the conduct of the Principal and the school’s administration. QCAT refused the father the relief he sought and prohibited publication of evidence and documents from its proceedings. Mr Brabazon QC, in his decision as a Member of that Tribunal, expressed the opinion that the father’s views about the Principal and the school, that the father made clear he wanted to make public, were defamatory and damaging. Mr Brabazon was satisfied those views were “wrong, or misguided, or malicious, and [were] unsupported by the facts.”
In the first half of 2013, the father’s action against the school commenced in the Federal Circuit Court was dismissed, most of it summarily. Costs were awarded against him. The father then appealed against that dismissal to the Federal Court. He was not successful there either.
Then, in September 2013, the father commenced proceedings against the school in the Supreme Court of Queensland seeking $3.55 million in damages. Importantly, by that time though, the father had established a number of internet websites that became a forum on which he did publish many articles that were extremely critical of the school, its Board of Directors, its administration, its staff and its policies. He had also published similar material to the internet via other social media websites and platforms.
The school defended itself in all of the actions the father commenced against it. Negotiations between the school and the father eventually led to a Deed of Settlement being signed on 13 November 2013. The father insisted the mother be a party to the Deed as a condition of his agreeing to sign it. Having been involved in many review applications in respect of the assessment of his child support liability for the child, including applications to the SSAT about child support assessments and appeals to the Federal Circuit Court against those SSAT decisions, the father only agreed to sign the Deed of Settlement on the basis that the mother agreed to enter into a Binding Child Support Agreement providing for the father to only pay $1.00 per year in child support for the child. The mother agreed, attributing that to her desire to see the litigation between the father and the school ended and to see the publication on the internet of material about the school removed and discontinued as soon as possible. She considered that the ongoing publication of the material on the internet was potentially detrimental to the child’s welfare and also put her enrolment at the school at risk. In my judgment, those views were reasonable.
The father and the school agreed to settle all claims between them finally on terms set out in the Deed. For his part, the father agreed:
(a)To do all acts and things necessary to immediately remove and procure that internet service providers remove all content (including cached content), relating to [the school], any of its officers, employees or agents (past, present or future).
(b)To never again at any time publish, cause to be published, encourage, request or enable to be published, including without limitation by response to questions or request for comment from others including journalists, by an [sic] means whatsoever any comment about [the school] or any of its officers, employees or agents (past, present or future).
Within days of executing that Deed, for a reason not explained at all by the father, he sent an email to the solicitors for X School and to the mother saying:
Just to let you know that I’ve been in contact with [a television program] about your settlement deed. There will be a story run on [the television program] shortly. Taking advantage of parents in the way you have done is absolutely disgusting.
Unsurprisingly, the school and the mother then sought urgent relief in the Supreme Court of Queensland. That culminated in a hearing before Byrne SJA on 26 and 27 November 2013. On 27 November, 2013 Byrne SJA ordered the Deed of Settlement be specifically performed and that the father do all things that he was required to do by the Deed, with the father’s claim to have the Deed of Settlement set aside dismissed and with the father ordered to pay the others’ costs.
The father did not cause the content of the internet websites to be removed and did not otherwise comply with Byrne SJA’s orders. Consequently, the school petitioned for the bankruptcy of the father and he was made bankrupt in or around early 2014. The school claimed it was owed by the father approximately $190,000 pursuant to various costs orders. Another creditor is the Child Support Agency to the extent of approximately $4,396. There are other creditors, too, including five different credit card providers, who are owed in total approximately $91,000. The school also sought to have the father dealt with in the Supreme Court for contempt of that Court.
The father’s trustee in bankruptcy then intervened in these property adjustment proceedings.
On 15 May, 2014, when I made the Order that the child’s time with the father be restricted to supervised time at a contact centre, I also dealt with an application of the mother seeking Orders against the father in respect of the material he had published on the internet about the school, but also in respect of offensive and inappropriate material he had published about the mother on the internet. Satisfied that the existence of the published material on the internet about the child’s school and about the mother was detrimental to the child’s best interests, I made Orders that the father cause it all to be removed forthwith and restraining him from publishing on the internet any remarks about the mother, the child or the school.
Then, in June 2014, on the school’s application, Atkinson J of the Supreme Court determined that the father had committed contempt of the Supreme Court by breaching certain Orders made by the Court and undertakings he had given the Court by his failing to remove published material and by publishing further material. The father had published grossly defamatory material, including:
(examples omitted to comply with s 121 Family Law Act 1975 (Cth))
Justice Atkinson sentenced the father to 12 months imprisonment wholly suspended for a period of three years and ordered him to pay the school’s costs on an indemnity basis. He was already bankrupt at that time. The school had spent hundreds of thousands of dollars in legal costs defending itself in QCAT, the Federal Circuit Court, the Federal Court and the Supreme Court of Queensland. The father had become bankrupt, subject to a suspended term of imprisonment and was no longer the holder of a solicitor’s practicing certificate. In the meantime, the father had consented to the child remaining at the school on an interim basis.
The mother did file contravention proceedings and contempt proceedings against the father in this Court for him to be dealt with for his breaches of the Orders I made in May 2014 in respect of the same published material that founded his conviction for contempt of the Supreme Court, but she did not press those applications in the end.
One final aspect of the material published on the internet by the father that I consider necessary to mention, is the inclusion in the 2014 published material of references to various passages in the Bible as providing support for the grossly unacceptable and false assertions the father was publishing about the school, its Principal, its staff and its students.
An apparent serious deterioration in the father’s state of mental health and his life circumstances in the months leading up to May 2014 satisfied me that the child’s best interests were served by limiting the time she spent with her father to supervised visits. The father appealed against that parenting Order I made and the appeal was heard and dismissed by the Full Court before the October 2014 trial.
These Proceedings
I consider it appropriate to now deal with the matters I am required to determine by firstly determining the parenting Orders dispute, then the property adjustment dispute, followed by the mother’s application for the father to be made subject to a vexatious proceedings Order.
The Parenting Orders Dispute
Pursuant to the provisions of Part VII of the Family Law Act this Court is to make such parenting orders as the Court thinks “proper”, and, in so doing, must regard the best interests of the subject child as the paramount consideration.
In determining what is in a particular child’s best interests the Court must consider an extensive list of matters.[1] Those matters include, listed as “primary considerations”, the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm.
[1] That list is set out in s 60CC of the Family Law Act
The ‘best interests’ inquiry can be a broad one. That is made clear by the inclusion in the list of the consideration of “any other fact or circumstance that the court thinks is relevant”. Additionally, in determining the proper parenting orders to make, the Court should also be mindful of the Objects and the Principles underlying those Objects that are expressly set out at the commencement of Part VII. Of course, the actual weight to be attached to the various components of all the applicable statutory provisions will vary from case to case having regard to the evidence and the Court’s factual findings.
Determining what is a “proper” parenting order to make is also subject to the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child, unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2] Even if there are no such reasonable grounds, the Court may still make a different parental responsibility order if persuaded, on the evidence, the presumption should not apply.
[2] Section 61DA(1) and s 61DA(2) of the Family Law Act
“Parental responsibility” is defined in s 61B of the Family Law Act. It means, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. It matters most, at least in my judgment, when decisions are to be made about what are defined in the Act as “major long-term issues” in relation to a child. That term is defined in s 4 to mean “issues about the care, welfare and development of the child of a long-term nature” and includes (but is not limited to) issues of that nature about the child’s education (eg what school she goes to), the child’s religious and cultural upbringing (eg should she be brought up as a Christian or without taught adherence to a particular faith), the child’s health (eg should she have elective surgery to have her tonsils removed or not), and the child’s name.
If a parenting order is made conferring parental responsibility in respect of a child equally on that child’s parents, there are a number of relevant consequences. Firstly, in so far as the further determination of the proper parenting order is concerned, the Court must consider whether the child spending equal time with each of the parents is reasonably practicable and also whether such an arrangement would be in the best interests of the child. Whether it is “reasonably practicable” is to be determined by reference to matters set out in s 65DAA(5) of the Family Law Act and whether it would be in the best interests of the child is to be determined by reference to the matters already referred to. If, after those considerations, an order for the child to spend equal time with each of the parents is not made, the same two pronged consideration must be given to arrangements that provide for the child to spend substantial and significant time with each of the parents. The term “substantial and significant time” is also explained in s 65DAA(3).
Another consequence of a conferral, by order, of equal shared parental responsibility is the mandatory requirement, imposed by s 65DAC of the Family Law Act, when a decision about a major long-term issue in relation to the child is to be made, for each of the parents to consult the other in relation to the decision and to make a genuine effort to come to a joint decision. The provision goes further though. The decision is actually required to be made jointly by the persons who share parental responsibility. The statutory provision does not provide an alternative or fall-back position. Accordingly, in my judgment, if the decision is not made jointly it cannot be made at all, thus requiring parties to go back to family dispute resolution processes and, if that fails, to the courts for a decision to be made. This is indeed, in my view, relevant to consider when determining whether the conferral of parental responsibility on two persons is in the relevant child’s best interests.
Parental Responsibility in this Case
In December 2011, Judge Howard made an interim parenting Order that conferred equal shared parental responsibility on the parents. As I have already observed, in April 2013, the father consented to an order that varied that by conferring sole parental responsibility for the child’s education, including as to the decision about which school she should attend, on the mother. In the interim proceedings determined by me in May 2014, the father submitted that he could simply withdraw his consent and that the April 2013 order was necessarily discharged as a consequence. I rejected that submission for reasons I gave back then.
At the time, the father maintained the position that the child should be removed from the school she was attending. I asked the father what would happen if parental responsibility was shared and he and the mother could not agree as to whether the child be removed from the school she was attending (as I am now completely satisfied they could not). His simple response was that the child would just have to go to a State school in those circumstances. I did not vary the Order that the parents had consented to in April 2013.
At the end of the trial in October 2014, the father submitted that the proper parenting order to make would include conferral of sole parental responsibility upon him. He also made the submission that the child’s best interests would be served by ordering her to be removed from the school she attends. He supported his submission with the proposition that leaving the child at the school exposes her to potential harm that might be directed at her by the school’s administration and her fellow students because of his conflict with the school over the last few years and because of the material that he published to the internet about the school, its staff and its students.
It is important to note, after having been convicted of contempt of the Supreme Court for his actions in respect of the publication of material about the school, I do not consider that the father appeared remorseful or regretful at all during the trial in this Court for his actions to do with the school. In such circumstances, I consider it extremely odd that he would submit that the potential for his child to suffer as a consequence of his completely inappropriate, offensive and unacceptable behaviour is a good reason for moving her from that school. Needless to say, I do not accept the submission.
At the trial, the father could not even maintain a consistent position as to whether he proposed the child attend another private school or a State school. Nor could he even begin to properly explain a basis for preferring a State school over a private school.
The child has only ever attended the one school. The evidence, which the father did not take issue with, supports findings that the child very much enjoys going to that school, is doing very well academically, has been participating in extension programs in some subjects designed for gifted and talented children, has expressed the desire to continue going to the school and is very well supported there by her mother and the administration of the school. There was no evidence of any adverse impact upon the child as a consequence of the father’s behaviour. That is indeed fortunate in all the circumstances.
Frankly, it could hardly have surprised the father when I informed the parties, and the mother in particular, during the evidence and before I had heard oral submissions, that I did not intend to make a parenting Order acceding to the father’s application to move the child from her school. Notwithstanding the father’s gleeful assertion that I had given him his first ground of appeal, I considered that I was entitled to inform the parties of the position I had reached on that issue pursuant to the provisions of Division 12A of the Family Law Act, s 69ZR in particular, and I informed the father of that.
The evidence certainly convinced me that the mother and the father could not be expected to be able to reach agreement on decisions about major long-term issues in the child’s life, let alone consult each other and make a genuine effort to reach agreement. Reference to a couple of pieces of evidence that demonstrate the father’s attitude to negotiation with the mother is, I consider sufficient, to support my conviction on this point.
In October 2013, after the father was living in the northern suburbs of Brisbane with Ms M, although the alternate weekends that the child was spending with the father had been cut back to finish on the Sunday nights so she could be back on the Gold Coast to start school on the Mondays, holiday time was still shared equally between the parents. The parents had apparently agreed that this meant that the child could stay with the father in the second half of the holidays and be returned by him to school at 8:30 am on the morning of the first day back to school. Through his dispute with the school, the father had been told that he must not enter the school’s premises save in certain specified circumstances and only with the Principal’s prior consent. Knowing this, the mother put forward a number of alternatives for transition on the first morning of the last term in 2013. Those included the father dropping the child at McDonalds Restaurant in NN at Gold Coast any time before 8:30 am, transition at McDonald’s Suburb Z at 7:00 am, transition at McDonald’s Suburb RR (near where the father lived) at 7:00 am, the mother collecting the child from the father at 6:00 pm that day or any other proposal put forward by the father that suited him that would see the child get to school on time.
The father’s simple and unwavering response was to demand that the mother pick the child up from Suburb RR in north Brisbane at 8:30 am that first day of school. In fact, he said to the mother “If she is late for school that is your problem”. Of course, the child was late for school that day, not arriving until 10:30 am. The father’s actions demonstrated no consideration of the child’s needs at all.
On 21 February 2014, knowing that the father had separated from Ms M and was living in shared student accommodation on a University campus (although only having been told that by the child and not the father), the mother reasonably asked the father what arrangements he was making for accommodating the child on the weekends she was staying over with him and to confirm that she would not be staying with him at the university. In response, the father told the mother he was going to file a Domestic Violence application against her. She politely asked again. He told her to “fuck off” and that he would have a temporary DV order issue. She politely but firmly asked again and told him that if he did not tell her that she would not hand the child over for the visit. He responded, “go fuck yourself”, and said he was “looking forward to doing the recovery application”. He then told her the DV application was being filed and simply told her that he had “appropriate accommodation arrangements for [the child]”. The mother wrote another reasonable response. The father responded “we are staying at mums. DV filed. Hearing on 5th March.” The mother wrote another reasonable request for further information about his proposed arrangements. The father responded simply with “go fuck yourself”. Five minutes later he wrote another text message to the mother saying:
Let’s make it clear you fucking retard. [The child] will stay at mums, or in motel or camping. I do not agree to [the child] attending [her school]. Please do not sent any further texts you dickhead.
A half hour later he texted the mother again, “??”. A little later, the father told the mother that he would use this text conversation in Court and he told the mother that she was “truly a fat fucking idiot”.
Unsurprisingly, the father did not use that text exchange in Court. Equally unsurprisingly, the mother did.
Further, I will not go through all of the written exchanges, but there was evidence of a similar type of approach taken by the father in a communication exchange between the mother and the father when the mother was asking the father for his permission for her to take the child to see an orthodontist for some diagnosis and treatment of some dental problems. The father’s position was again, in my judgment, dogmatically unreasonable, showing complete disregard for the child’s best interests.
I do not consider it in the best interests of the child to put any parental responsibility order in place that requires her mother to have to consult with and endure the process of consulting with the father when decisions have to be made in respect of the major long-term issues in the child’s life. I consider that would be condemning the mother to further abuse and intimidation by the father and the family to a requirement of having to return to Court for decisions to actually be made. I will not make such an order. I am fortified in my determination by reference to the concluding paragraph of the third and final family report in this case from Ms S, a very experienced social worker who has produced countless family reports over the years of her career. Ms S saw and assessed this family over a couple of years. She expressed the clear opinion that the mother should have sole parental responsibility for the child as the child primarily lives with her and “it has become evident that [the father and the mother] are simply not able to communicate effectively and without rancour, and not able to make joint decisions for [the child]”.
The evidence persuades me that it is not in the child’s best interests to make an equal shared parental responsibility order, notwithstanding the s 61DA presumption. However, to the extent that it might otherwise be necessary, I also consider the presumption does not apply in any event as I am satisfied the father has engaged in abuse of the child and family violence against the mother.
The father’s text messages to the mother already set out above in this judgment are derogatory, intimidating and threatening. In my judgment, they constitute family violence against her and it is behaviour that the father must desist from.
As to the child, on Christmas Day in 2011, when the child was returned to the mother by the father after having been in his care, she had a relatively large graze to the skin of the small of her lower back, just above her buttocks. Colour photographs of the graze were adduced in evidence by the mother. The mother’s evidence, which I accept, was that the child told her, when the mother asked what had happened, that “daddy was very angry” and had “dragged [her] along the carpet”. When the mother called the father seeking an explanation, she said that he would not give her one. The mother reported the matter to the police who investigated the matter and, according to the mother, told her that they had spoken to the father about appropriate and inappropriate discipline.
The father’s evidence about how the graze was sustained by the child did not satisfy me that the child had not been treated inappropriately and abusively by him. There was other evidence that persuades me the father has certainly emotionally abused the child as well. I will discuss that in more detail later.
I do not consider equal shared parental responsibility to be in the child’s best interests. I will not make such an order.
Who the Child lives with?
The child is 10 years old now. She was principally cared for by her mother during the first five years of her life that her parents lived together. For most of that period, her father worked in his own business and the mother was engaged in the full-time care of the child. The father moved out of the former family home and agreed for the child to continue living with her mother. They agreed for the child to spend time with her father on a regular basis.
The amount of time that the child spent with her father was significantly reduced when the father moved from the Gold Coast to take up residence with Ms M in early 2013. That reduction in time she spent with him was brought about by necessity caused by the father’s move, the father’s choice. It was not brought about by any action of the mother nor by any parenting Order of the Court.
The first Court imposed reduction in the amount of time that the child spent with her father did not occur until May 2014. Since that date, the child has only been spending supervised time with the father for a couple of hours each time. That did not start for a few months after I made the Order in May, due to the usual delays around getting in to a children’s contact centre.
The mother continues to work as a solicitor. She continues to live in her home on the Gold Coast which is only five minutes from the school that the child has been attending for five years. At the time of the trial the father was studying and living in student share accommodation on a university campus in Brisbane.
No evidence that was before me caused me to be concerned as to how the mother is parenting the child. Indeed, I consider it critically important to remark that all of the evidence supports a finding that the child has a good relationship with her father. In my judgment, that is equally as reflective of the manner in which the mother has shielded the child from the distress that knowledge of much of her father’s conduct would necessarily cause her, as it is attributable to the way the father relates to the child.
I briefly remark that the father’s efforts to portray the mother as suffering from a mental health disorder in the form of anxiety that somehow reflected poorly upon her credibility and her parenting capacity actually reflected more poorly upon the father than on the mother. That the mother has sustained her emotional health as well as she has in the face of what she has been confronted with by the father over the last several years is a testament to her resilience. I comfortably accept that she has the emotional and mental health capacity to continue to principally parent the child.
Considered carefully, there can only be one outcome determined to be proper and in the child’s best interests as to which parent she lives with. It must, in all the circumstances, be the mother. The father has demonstrated that he does not have the appropriate attitude or capacity, either practical or financial, to be principally responsible for the child’s care and to co-parent responsibly with the mother.
There is so much more evidence that I could refer to that went towards persuading me of the father’s complete dishonesty, his totally lamentable attitude to the mother and the importance she has in his daughter’s life, his lack of true understanding of and respect for his daughter’s needs, his disrespect for the proper place of the Courts in the governance of our society and the maintenance of the rule of law (him seeing them more as a tool to be used by him to oppress others rather than as arbiters of legitimate disputes), and his apparent complete lack of insight into the place to which his own behaviour has brought him. In my judgment, there is no need to refer to all of this to justify making a proper parenting order in respect of parental responsibility, in respect of who the child lives with and in respect of the school she goes to.
The parenting Order I will make will have the child continue to live with the mother. It will confer sole parental responsibility upon her and it will provide for the child to continue to attend at the school she has always attended.
What time should the Child spend with the father and in what circumstances should that happen?
In May 2014, I determined, on an interim basis, after a truncated interim hearing without any cross-examination of any witnesses, that the child should only spend time with the father on a supervised basis. I did so as I was satisfied at that time that leaving the existing order in place exposed the child to an unacceptable risk of physical and emotional harm.
The real issue in this matter now, in my judgment at least, is whether I am still so satisfied after considering all of the evidence at trial.
As I have already said, the father has, by his conduct and his own evidence, put the state of his mental health in issue throughout these proceedings.
In 2012, the ICL commissioned a psychiatric report of both parents from Associate Professor V, a consultant psychiatrist. Whilst the Doctor did not consider that the documentation he had read indicated either party was suffering from any mental illness, he did express the opinion that the father showed signs best understood as constituting Adjustment Disorder. He quickly added though that it was fairly minor and not uncommon in the context of a family law dispute. However, the doctor expressed perplexity at the discrepancy between how the parties, particularly the father, presented at interview and the affidavit material he had read. He was clearly referring to the father’s behaviour.
Dr V said that ordinarily one would attribute the father’s conduct to some form of personality disorder, but his apparent good functioning in other aspects of his life seemed to discount this. He thought that the pathological aspects of the relationship of the parties might be accentuating particular personality traits in both of them. However, he did not consider the father to have a psychiatric problem that would inherently cause problems in his providing care to the child.
The father then obtained a psychiatric report of his own from Dr L in March 2013. The ICL also put that into evidence for the trial. In that report, Dr L expressed the view that the most concerning issue is “the emotionally unstable, dysphoric and distressed state of [the father’s] mood in relation to issues before the Court.” Dr L went on to agree with the diagnosis of an Adjustment Disorder as outlined by Dr V and expressed the opinion that the father was at risk of developing Major Depression. He went on to assert that the father does not present with the features of a specific developmental disorder or the features of a specific personality disorder.
The father’s new relationship with Ms M was discussed and Dr L pointed out that the father was negotiating the development of that relationship and was not reporting any stressors in that regard. He did express the view that the longer those stressors that did exist in the father’s life, (the family law dispute and the litigation with the school) the greater was the risk that the Adjustment Disorder would impair his functioning and develop into a more sever psychiatric disorder in the way of Major Depression.
Dr V saw the parents again in August and September of 2013. His report, though dated February 2014, must be read in that context. I make that observation because the father’s tumultuous separation from Ms M had not occurred when Dr V saw him then in 2013.
Dr V noted an immediately observed difference in demeanour of the father from when he had previously seen him. He said the father was almost immediately tearful and was keen to deny that he had acted inappropriately. He said that the father told him he was seeing a psychologist every month. The doctor noted less than optimal self-care and observed the father was “generally dejected”. He also observed a “pervasive but mild depressed mood”. He recorded being told by the father that he was only working part-time and receiving a sickness allowance for Adjustment Disorder. He also recorded the father telling him that he believed he has “suffered psychological abuse at the hands of the mother”.
The doctor observed that the issues with respect to the father “are quite complex and also uncertain”. He considered there had been a deterioration in the father’s emotional state since the previous assessment and that it was likely he was suffering from a Depressive Disorder rather than an Adjustment Disorder. He did not consider there were symptoms of Major Depression though. The doctor determined to describe the father’s condition as an atypical depression. He explained that it was likely that was playing some part in the more extraordinary aspects of the father’s behaviour. He expressed the view that the father’s behaviour surrounding all of the litigation he was involved in can be understood as constituting a “maladaptive attempt to deal with his emotional decompensation”. He said that regardless of the possible negative consequences to the father, it makes him feel better. Dr V said it could be seen to be “an attempt to assert control in a situation where [the father] feels not in control and using the only tools he has available which is his legal training.”
Dr V said that this is an unusual response to depression and is likely to reflect underlying personality. He recommended ongoing psychiatric treatment for the father and psychotherapy from a psychologist. He concluded by asserting that the father’s atypical depression is likely to be transient and ought not to affect his capacity to be an effective parent. He also noted that any underlying personality issues are not of an extent that would make him incapable of being an effective parent and he very much doubted the father constituted a threat to the safety of the child.
Ms M’s Evidence
In early 2014, Ms M contacted the ICL after her separation from the father and told him the story of her concerns of the father, particularly arising from the circumstances of their separation. She agreed to give evidence of that and she did in affidavit form.
She said she “grew increasingly alarmed at [the father’s] behaviour with [the child] and [her] own children” in the months leading up to December 2013. She said that on the weekends when the child came to stay with them, she would be up late, often until 11 pm and that when she raised her concerns with the father “he didn’t care”. She said that the father talked about court and made derogatory comments about the mother “all the time”. She said he complained that the mother was “always taking him back to Court” and “making his life hell”. She said that he would refer to the mother as a “bitch” and swear about her in front of the child.
She said he took the child to his office one day and that the child needed to go to the toilet. She said that a McDonald’s restaurant with a public toilet was only a few hundred metres down the road but he made the child defecate in the garden out the back of the office block where his office was, “in view of a public car park”. She said that at one point in the holidays when the child was staying with them, the father let her go for three days without a bath or a shower and, when spoken to about it, the father is said to have remarked that she could have a swim in the ocean when they went camping the next day and that she would be fine.
Ms M outlined that the father had:
·Put spyware on her laptop and accessed her emails, learning in advance of her determination to end the relationship with him;
·Referred to her children as “retarded”;
·Turned the power off in her house as she was entering it late at night;
·Let her dogs out to run around the street to annoy her and get her back to the home;
·Cut off her access to her phone, the internet and her social media accounts, changing passwords on these things, and causing them to erase at some point in time when they were switched on again;
·Sent her emails taunting her that he had control over her internet accounts;
·Turned off her electricity when she went away on holidays for a week, causing hundreds of dollars’ worth of food in the fridge and freezer to spoil and be thrown out;
·Sent her threatening messages;
·Caused her to be made the subject of a Justices Examination Order (an involuntary psychiatric examination ordered by a Magistrate on an ex parte application);
·Commenced proceedings against her for property adjustment orders pursuant to the Family Law Act, seeking all of her property, notwithstanding cohabitation of less than a year;
·Shown no empathy in any situation;
·Failed to provide comfort to the child when she hurt herself;
·Spent abnormal amounts of money when the child was with him whilst saying he could not otherwise afford to pay child support;
·Sent her a text message saying “I know where you keep your knives, sleep well”;
·Threatened that he would have her in the court system for years and would make her bankrupt;
·Had said that the way to get at the mother is through the child, E;
In my judgment, having regard to the principles concerning the consideration and treatment of post-separation, pre-trial use of or disposition of assets or capital such as the proceeds of sale of the former family home, it is appropriate and relevant to consider the parties’ receipt of $89,000 each and the father’s disposition of his vehicle worth around $15,000 in determining just and equitable property adjustment.
The mother also had the benefit of $4,000 from the invested funds to pay her half share of Dr B’s fees. It is appropriate to take that into account as well when determining just and equitable property adjustment.
Including the balance of the sale proceeds of the property that are invested, the mother’s jewellery and interest in her own mother’s jewellery and the furniture and household items I am satisfied each retains in his and her own possession, the notional amounts of $89,000 each, $15,000 for the father’s car and $4,000 the mother received for Dr B, a total pool of cash, property interests and notional amounts equal to just under $650,000 is arrived at.
The value of the mother’s car is cancelled out by the debt she owes GE finance secured by the car. The value of the mother’s property purchased post-separation is cancelled out by the debt she owes in respect of its purchase and the balance of the debts from both sides were incurred by each of them post-separation and are not, in my view, appropriate to consider at this point of the discretionary exercise.
Post-Trial Consent Order
At the end of the trial, the mother, the father and the trustee in bankruptcy all agreed on some further interim distributions of the money that was held in trust.
As the father’s case was that $126,051 of that money be paid directly to the trustee in bankruptcy with the balance to be paid to the mother, the three parties agreed that the mother should receive, by way of partial property distribution the difference between the total amount held in trust and that sum of $126,051. An Order to that effect was made.
Furthermore, as the mother and the trustee agreed that at least $50,000 of the balance of $126,051 be paid to the trustee, all three parties agreed that such amount could be paid immediately, leaving only $76,051 in trust to be made subject to final property adjustment order when determined.
Pursuant to the father’s submissions that was to be paid to the trustee. Pursuant to the mother’s and the trustee’s submissions that was to be paid to the mother.
Contributions
I accept that the father directly contributed $55,000 to reduce the mortgage debt secured over the mother’s property pre-cohabitation owned property that was later sold, debt free, netting the parties $560,000. There was no dispute that property was worth $435,000 at the time that amount was paid to reduce the mortgage debt. That cash contribution by the father into the mortgage debt was the equivalent, therefore, of about 12.5 per cent of the then value of the property. Otherwise, the mother contributed the balance.
I also accept that the father’s pre-cohabitation owned property also was the source of another $27,000 that was used to buy the car that he later transferred to his trust and still was driving at the date of the trial and another $12,000 that went into the mother’s AMP account.
Otherwise, the father worked running his practice during the marriage, although it was reporting a loss rather than a profit. The mother also worked in paid employment at the commencement of the relationship and during the concluding years of the relationship, contributing her salary to the benefit of the relationship and the family.
The mother’s parents gifted $30,000 to the cost of the parties’ wedding and another $50,000 that was used to pay for improvements on the property that was sold after separation. I consider those, in accordance with principle, contributions made indirectly by the mother.
The mother’s parents also provided the mother and the father with rent-free accommodation for quite a period of time. That was worth thousands of dollars to the couple. On the other hand, the father did some conveyancing work for members of the mother’s extended family without charging them for it. The mother quantified that as being worth a few thousand dollars.
I find that an assessment of the financial contributions made by the parties, directly and indirectly, overwhelmingly favour the mother.
I accept that after the child, E, was born the father contributed to her care. I also accept that he contributed to household tasks that were undertaken during the course of the cohabitation of the mother and the father. However, the mother again contributed more in this respect than did the father, given that she undertook full time parenting and homemaking for several years during their cohabitation.
For around three and a half years between the father moving out of the former family home and the trial, again, the mother made the overwhelming parenting contribution. In the first months after separation, she also made more contributions, direct and indirect, financial and non-financial, to the maintenance of the former family home that was subsequently sold, whilst, it must be acknowledged, she was living in it to the exclusion of the father.
Between April 2011 and September 2014, the father had paid a total of $15,167 in child support. That is the equivalent of about $80 per week. It must be seen and considered against the mother’s unchallenged evidence that the weekly costs referable to the child’s care, not including the cost of housing, electricity, water and petrol usage, are about $400 per week. Accordingly, the mother has made by far the largest contribution of both the child’s parents to the practical and financial support of the child.
The assessment of the various contributions made by parties in property adjustment cases is not a purely mathematical exercise. It is a discretionary exercise undertaken within the mandatory constraints of the s 79 considerations. As has been pointed out before, a move from a qualitative assessment of contributions to an expression of that assessment in terms of property adjustment orders requires the qualitative assessment to be converted to quantitative terms. Historically, that has generally been done by expressing the assessment of the competing parties’ various contributions in percentage terms as compared against an overall “pool” of property. In this case, I would express my assessment of the relevant contributions of the mother and the father as against the pool of cash, property interests and notional amounts that I referred to before that are equal in dollar value to just under $650,000. I would express my assessment in quantitative terms as to 75 per cent in favour of the mother and as to 25 per cent in favour of the father.
Twenty five per cent of $650,000 equals $162,500. The father has already had cash payments totalling around $89,000 and has the benefit of a car that he unilaterally disposed of to his own family trust that is valued at around $15,000. He also has furniture and household chattels in his possession estimated to be valued at $5,000. In addition, he has notionally had the $50,000 that was ordered, by consent at the end of the trial, to be paid to the trustee in bankruptcy. These all add up to $159,000. That would entitle the father to a further payment of $3,500 to reach his 25 per cent share.
At this point, I am of the view that an order that the father be entitled to a further payment of $3,500 from the funds invested is appropriate. All of that amount, of course, will vest immediately on the making of such an order in the trustee in bankruptcy. Accordingly, it is not inappropriate to order that money be paid directly to the trustee. In addition, consideration must also be given to the interest that the invested funds have generated in the period between investment and now. At the time of the trial, that was estimated at around a few thousand dollars. It would now be a little more than that.
Consideration must be given to the matters set out in s 75(2) in so far as they are relevant to determine if justice and equity requires any further adjustment to such a projected property adjustment having regard to those matters.
The mother is 38 years of age and the father is 39 years of age. Each has many years of work ahead of him and her. Both are apparently, according to the evidence, in good health, although there are some concerns surrounding the father’s emotional health.
The mother is a solicitor and at trial was employed earning around $1,100 net per week. The father was studying towards a Master’s Degree and expecting to get employment in the information technology industry within a year or so. He was receiving a Sickness Benefit from the Commonwealth Government as well as working part-time at a department store.
The mother will have the principal responsibility of caring for the child into the foreseeable future. I am satisfied that will be without much practical or financial assistance from the father. The father will be relieved of much of his debt through his bankruptcy but the mother owes her solicitors and her father’s company a lot of money in respect of the legal fees in these proceedings.
The mother retains the financial resource of her interest in the Testamentary Trust. It is relatively valuable. That she will receive nothing from that for several years to come is a factor that I take into account.
The father’s creditors, after payment of the Official Trustee for his services and costs incurred in administering the father’s bankruptcy, will not likely, on the evidence, receive much of a dividend from the bankruptcy. However, there is no suggestion that the mother will benefit in any way from this, as the father’s debts that brought him to bankruptcy have, as already has been observed, been incurred by him through his unilateral, post-separation actions. In my judgment therefore, justice and equity does not demand that the mother’s entitlements to a just and equitable property adjustment as against the father and, through his trustee in bankruptcy, his creditors, should be adjusted so that the creditors receive more.
Pursuant to s 75(2)(o) of the Family Law Act, the Court can also have regard to any fact or circumstance which in the opinion of the Court, the justice of the case requires to be taken into account. I am mindful of the evidence about the legal costs the mother has incurred meeting and responding to all of the father’s court and tribunal applications over the last four years. Amongst those, have been numerous objections to child support assessments, appeals to the SSAT in respect of those objections, appeals to the Federal Circuit Court from decisions of the SSAT and appeals from that Court’s decisions. The mother has been put to serious inconvenience and expense meeting and answering them all. The father’s position has been that his incapacity to pay child support as assessed has never properly been recognised. Then, rather bizarrely, when the mother was able to convince the Child Support Agency to cancel the assessment against the father so as to set his liability for child support at nil so that she does not have to continue to respond to and meet his objections and applications, the father objected to that determination and appealed the dismissal of that objection to the SSAT. The hearing of that appeal was pending at the time of the trial.
I am satisfied that was only being done by the father to cause the mother expense, inconvenience and distress and for no other reason.
I consider these circumstances to also be relevant under s 75(2)(o) to a just and equitable property adjustment. Accordingly, having regard to all of the matters set out in s 75(2), I am of the view that no further “adjustment” in favour of the father is required to arrive at appropriate and just and equitable orders in respect of the property interests of the parties. Indeed, in my judgment, after consideration of these s 75(2) matters, any interest earned on the remaining cash invested since the trial should be paid to the mother. That is what my property adjustment orders will provide for.
There remain the superannuation interests of the mother and the father. These are considered as if they were property of the parties.
The uncontroverted evidence of the mother is that her superannuation interest in AMP super was worth $16,457 at the commencement of cohabitation. She estimated the father’s superannuation interest to be worth $15,000 at that same time. He adduced no evidence to contradict that. By separation, the mother’s superannuation interests had increased in value to be worth $28,000, some of that was clearly attributable to fresh contributions made by her employers. She estimated the father’s had increased in value to $25,000. Again, he adduced no evidence to contradict that.
By the time of trial, the mother’s superannuation had increased in value to be worth around $60,000, an increase of $32,000 since separation. Much of that, I accept, would have been attributable to fresh contributions being made by her employers since separation.
At the same time, the value of the father’s superannuation interest had reduced to $17,000 and he had withdrawn and used $8,000 from his fund.
Having regard to the matters of contribution and the matters set out in s 75(2) that I have already discussed, I do not consider that any order providing for the splitting of superannuation from the interests of either the mother or the father to the other party is appropriate or required in order to do justice and equity between the parties. I reject the father’s submission that he should have $50,000 split from the mother’s superannuation interests across to his superannuation account. I will not make a superannuation splitting order.
In reaching this determination, I do also acknowledge the merit in the submission of the solicitor for the Official Trustee in Bankruptcy, that making property adjustment orders weighted in favour of the splitting of superannuation from a non-bankrupt spouse to the bankrupt spouse so as to ensure the bankrupt spouse got more “exempt” property than property that would immediately vest in the trustee and be distributable amongst creditors would not accord with public policy considerations.
In any event, the proper consideration of s 75(2)(ha) of the Family Law Act would, in my view, likely rule out such a course in most cases where there were creditors who had proven in the bankruptcy who might expect a dividend on the bankruptcy if a bankrupt spouse’s just and equitable entitlement to property that would immediately vest in the trustee was ordered to be paid or transferred to him or her. Of course though, I hasten to add that each case must be determined on its particular facts and the outcome might well not necessarily be the same in all such cases.
The Vexatious Proceedings Application
The mother also seeks a vexatious proceedings Order against the father pursuant to s 102QB(2) of the Act. Part XIB of the Act applies to these proceedings as they were transferred to this Court from the Federal Circuit Court after 11 June 2013 when the newly legislated Part came into effect.
Relevantly, if the Court is satisfied that a person has “frequently instituted or conducted vexatious proceedings in Australian courts or tribunals” it may make an order prohibiting the person from instituting proceedings under this Act in a court having jurisdiction under this Act and it may make any other order the court considers appropriate in relation to the person. (see s 102QB(1) and (2))
In determining if I am satisfied that the father has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals I may have regard to proceedings instituted or conducted in any Australian court or tribunal and orders made by any Australian court or tribunal and the father’s overall conduct in those proceedings, including his compliance with orders made by that court or tribunal, including any proceedings instituted or conducted by him before 11 June 2013.
By s 102Q(1) of the Act, “vexatious proceedings” are defined. They include:
(a)Proceedings that are an abuse of the process of a court or tribunal; and
(b)Proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)Proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)Proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The Evidence and My Findings
Relevantly, the mother deposed to the following factual matters in her trial affidavit:
(i)As at 18 December, 2013, the father had instituted at least 53 proceedings in Australian courts or tribunals, including:
(a) 13 proceedings against the child’s school (costing the school around $600,000 in legal fees;
(b) 1 proceeding in QCAT;
(c) 5 proceedings in the Queensland Magistrates Court;
(d) 5 proceedings in the Queensland District Court;
(e) 11 proceedings in the Federal Circuit Court;
(f) 7 proceedings in the Full Court of this Court;
(g) 9 proceedings in the Social Security Appeals Tribunal; and
(h) 2 proceedings in the High Court of Australia.
(ii) Since 18 December 2013, the father instituted at least another 19 proceedings, being:
(a)2 against the mother in the SSAT;
(b)2 against the mother in the Queensland Magistrates Court;
(c)1 against the mother in the Queensland District Court;
(d)1 against the mother in the Federal Circuit Court;
(e)2 against the mother in this Court;
(f)2 against the mother in the Full Court of this Court;
(g)2 special leave applications against the mother in the High Court;
(h)1 against Ms M in QCAT;
(i)1 against Ms M in the Queensland Magistrates Court;
(j)1 against Ms M in the Federal Circuit Court;
(k)1 against Ms M in the Full Court of this Court;
(l)1 against the Official Receiver in the Federal Court (transferred to the Federal Circuit Court);
(m)1 against the real estate agent who sold the former family home in QCAT.
(iii) That there have been relevant findings already made in Courts as follows:
(a)Magistrate O’Driscoll found that the father’s application for a domestic violence order against the mother was frivolous and vexatious in nature and the application had no merit. He found the father’s evidence “unconvincing and unsubstantiated and deficient in respect to essential elements”. He found that the father “engaged in a deliberate, calculated and pre-planned approach to fabricate a history of events”;
(b)Magistrate Kluck found that another application for a domestic violence order made by the father was bordering on an abuse of process and, in all the circumstances, vexatious. The application was dismissed and the father ordered to pay the mother’s costs;
(c) Federal Magistrate Howard (as his Honour then was) found that an application against the mother’s solicitors for contempt brought by the father was vexatious. Though overturned on appeal for not having giving the father an opportunity to be heard, the finding is relevant;
(d)Lyons, Fraser and McMeekin JJA in the Queensland Court of Appeal found the father was unable to “identify any legitimate purpose for pursuing his appeal”. It was found that the appeal was pursued vexatiously and it was struck out.
(e) May, Ainslie-Wallace and Kent JJ in the Full Court of this Court found the father pursued a criminal contempt application that was “not only unmeritorious but which was never destined to advance the progress of the substantive financial proceedings below in any way. They had found that the father’s pursuit of the criminal contempt application was “vexatious and frivolous and serves no utility whatsoever”
(f) Douglas J in the Supreme Court of Queensland dismissed the father’s claim for $3.55 million in damages against the child’s school as being an abuse of process and ordered the father to pay the school’s costs on an indemnity basis;
(g) Judge Jarrett of the Federal Circuit Court dismissed the father’s claim for $750,000 in damages against the child’s school and said the father’s actions “rather than being measured and appropriate, [were] aggressive and inappropriate”;
(iv)that the father objected to the Child Support Agency’s decision to accept the mother’s request to end child support even after he had insisted she be a party to a Deed of Settlement with the child’s school requiring her to enter into a Child Support Agreement that he only pay $1 per year in child support. When his objection was disallowed, he appealed that to the SSAT;
(v)The father has appealed most, if not all, adverse decisions made against him, irrespective of merit, and has often advised the judicial officer appealed against that he intended to appeal immediately following delivery of the judgment and prior to having had the opportunity to even consider the reasons for judgment;
(vi)That the father is in receipt of a Health Care Card and is exempt from having to pay filing fees;
(vii)The mother has incurred approximately $190,000 in legal fees;
(viii)That the child’s school has incurred approximately $600,000 in legal fees;
(ix)The Legal Aid Office has incurred expenses in excess of $30,000 in these proceedings for the ICL;
(x)That in a judgment delivered in 2014, Atkinson J of the Supreme Court of Queensland found the father guilty of contempt of that Court and sentenced him to 12 months imprisonment wholly suspended for 3 years;
(xi)That on 12 November 2012, the father left a voice message on the mother’s mobile phone message bank. It said:
I suspect we will having another Magistrate looking after this matter at the end of the month. Um and when Magistrate Howard disqualifies himself which presumably he will, um that will be a no brainer for my appeal because if a Magistrate disqualifies himself well then my Appeal will go straight through so this matter won’t be getting heard until probably next year. Ur because I will be filing for another stay of proceedings later down the track. So um if you want to spend money on legal costs fine …, it’s not costing me anything so I’m happy to run with the flow. Um I’ve had family law matters run onto four or five years so if this is going to be a four or five year job, so be it.
Ur that will be fine. So just keep going the way you are going … wasting all your money, that’s fine. Maybe even too, hey look, we might even have a bonus. Maybe Nana … might pass away in the next year or two and that may increase the property pool. Bonus for me, that may even happen. So look the longer I drag this out, the worse it gets for you, so you may want to think about that as well. So I’m quite happy to run this ...
I know that the longer I run this, the better off I will be and that’s the way it’s working out at the moment. Have a good day.
I accept the mother’s evidence on all those matters and make findings of fact in accordance with those matters set out in the previous paragraphs as deposed to by the mother. I do so knowing that the father asserts that they are not all correct assertions. For example, in his written submissions he asserts that the mother has made up the evidence about the message he left on her phone. I reject that submission and find that he did leave that message in the terms asserted by the mother.
In my own experience, the father:
(a)contravened my orders that he cease publishing on the internet against the child’s school and take down the existing websites. Those omissions are the very actions that founded his conviction for contempt of the Supreme Court;
(b)read and relied upon multitudes of affidavits he has filed in the proceedings over the years. He complained bitterly and opposed the making of a direction for him to file and serve a list identifying the documents he actually intended to rely upon;
(c)demonstrated joy and satisfaction during the proceedings whenever the prospect of delay, adjournment or appeal came up or whenever there was some event or determination that the mother was not happy with;
(d)delighted in asserting the mother suffered from anxiety and that stress might cause her anxiety to flair such that it would impact negatively upon the child. He persisted in these claims despite expert psychiatric evidence that her mental health was fine;
(e)often told me that he would be appealing against my orders before I had even finished hearing the matter that I was being asked to determine. For example, he told me that he will be appealing against the orders I make finalising these proceedings before I had even finished hearing the trial.
The father opposed the mother’s application for a vexatious proceedings order submitting that he has merely been legitimately exercising his legal rights and submitting that as he has had success on appeal a handful of times that the order is not warranted. However, in my judgment, occasional success on appeal amongst a multitude of miscellaneous proceedings does not qualify otherwise vexatious conduct in litigation as legitimate and excusable.
On the evidence, I am more than satisfied that the father has instituted or conducted proceedings that have been an abuse of the process of the court or tribunal in which he has instituted or conducted them; that have been instituted to harass and annoy the mother, the child’s school and his other former partner, Ms M; that have been instituted to cause delay or detriment by way of costs and inconvenience to other parties; that have been instituted without reasonable grounds; and that have been conducted in a way so as to harass or annoy, cause delay or detriment.
Accordingly, I am satisfied that the father has instituted and conducted vexatious proceedings in Australian courts and tribunals as defined in the Act. I am equally satisfied that he has done that frequently having regard to the sheer numbers of proceedings he has instituted and conducted in the last four years.
Involvement in proceedings under the Act in this Court is productive of sufficient anxiety, inconvenience and expense for parties in the ordinary course. Even with the best of intentions of parents to shield their children from the impact of parental involvement in such proceedings, that involvement can also cause detriment to those children. There is something incredibly insidious about a parent with legal training, qualifications, and experience using that vexatiously to annoy and cause detriment whilst self-righteously, but clearly falsely, asserting that such behaviour is truly child focused.
I have no difficulty in all the circumstances of this case determining that the vexatious proceedings order sought by the mother should be made and I will make it.
I will make all of the orders set out at the commencement of these proceedings. I am satisfied that the parenting Order is proper and in the best interests of the child. I am satisfied that the property adjustment Order is appropriate and just and equitable and I am satisfied that the vexatious proceedings Order is required in the circumstances, particularly having regard to the best interests of the child.
I certify that the preceding two hundred and fifty-eight (258) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 August 2015.
Associate:
Date: 21 August 2015
Key Legal Topics
Areas of Law
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Family Law
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Insolvency
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Civil Procedure
Legal Concepts
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Costs
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Injunction
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Jurisdiction
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Remedies
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Appeal
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