Ridge
[2024] FedCFamC1A 181
•14 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ridge [2024] FedCFamC1A 181
Appeal from: Ridge & Hurley [2024] FedCFamC2F 1174 Appeal number: NAA 252 of 2024 File number: ADC 2379 of 2023 Judgment of: AUSTIN J Date of judgment: 14 October 2024 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Leave to commence proceedings – Where the primary judge dismissed the applicant’s application to vary final parenting orders – Where the applicant requires leave to appeal in circumstances where the primary judge made orders restraining him from bringing any further proceedings under the Family Law Act 1975 (Cth) (“the Act”) – Where all 91 grounds of appeal lack reasonable prospects of success and are therefore vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pts VII, XIB, ss 60CC, 64B, 65D, 65DAAA, 69ZN, 69ZP, 69ZQ, 69ZX, 102NA, 102Q, 102QAB, 102QAC, 102QAE, 102QAF, 102QAG
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 190, 192
Cases cited: Bennett v Bennett (1991) FLC 92-191; [1990] FamCA 148
Darley (No 4) [2023] FedCFamC1A 158
G v H (1994) 181 CLR 387; [1994] HCA 48
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Rice v Asplund (1979) FLC 90-725; [1979] FamCA 80
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 61 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person ORDERS
NAA 252 of 2024
ADC 2379 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RIDGE
Applicant
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 30 September 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
On 30 August 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders under Pt XIB of the Family Law Act 1975 (Cth) (“the Act”) to dismiss an extant parenting application brought by the applicant under Pt VII of the Act and to restrain the applicant from bringing any further proceedings under the Act. The primary judge then discharged the pre-existing parenting orders and made fresh orders under Pt VII of the Act regulating the care of the parties’ child.
The applicant tried to file a Notice of Appeal on 27 September 2024, but it was rejected because the injunction made against him pursuant to s 102QAC(1) of the Act prevents him from instituting any fresh proceedings without the anterior grant of leave to do so.
By an Application in an Appeal filed on 30 September 2024, in reliance upon s 102QAE of the Act, the applicant seeks the grant of the necessary leave to file and prosecute his intended appeal from the orders made on 30 August 2024, in support of which he read his two affidavits filed on 30 September 2024 and 2 October 2024.
The applicant expressly requested his application not be determined on the papers in chambers, but the Act enables the application to be determined in that way despite his contrary preference (s 102QAF(3) and s 102QAF(4)).
These reasons explain the determination of the application.
Background
The applicant and the respondent married in 2013.
Their only child was born in 2015 and was only an infant when the parties finally separated in November 2015.
The applicant first commenced proceedings in respect of the child under Pt VII of the Act in January 2016. Those proceedings were concluded by orders made in May 2020 following a lengthy trial. The orders provided for the child to live with the respondent, for the respondent to have sole parental responsibility for the child, and for the child to spend time with the applicant for six hours on alternate Sundays (at [10], [12] and [155]). The orders were premised upon findings the applicant had perpetrated family violence upon the respondent and there was still high conflict between the parties (at [25], [32], [36] and [155]).
The applicant appealed from those orders in June 2020 (at [42]), but the appeal was abandoned in December 2020 (at [48]) and his belated attempt to re-instate it was dismissed in September 2023 (at [54]).
In any event, in July 2020, within two months of the orders being made, a professional contact service withdrew its supervisory services from the parties (at [19] and [40]) and the child has not seen the applicant since then (at [6], [15], [66] and [155]).
In late 2020, not long after the child ceased spending time with the applicant, he was convicted of offences and sentenced to imprisonment for approximately two years (at [18]). In mid-2023, following his release, the applicant filed an application initiating fresh proceedings within original jurisdiction under Pt VII of the Act (at [13]) seeking to revise the orders made in May 2020. On a final basis, he proposed to share parental responsibility for the child and for her to live with him for equal time (at [20]). On an interim basis, he proposed the child spend time and communicate with him once each week (at [13] and [20]).
The respondent joined issue in November 2023. She too proposed revision of the May 2020 orders. On a final basis, she sought to restrain the applicant’s involvement in the child’s life. On an interim basis, she sought suspension of the May 2020 orders in so far as they made provision for the child to spend time with the applicant (at [17]).
In December 2023, given the lengthy hiatus of any interaction between the child and the applicant, the primary judge suspended the orders made in May 2020 requiring the child to spend time with the applicant (at [59]).
Then, in May 2024, following the commencement of Pt XIB of the Act, the respondent brought an application to achieve three aims (at [20]–[23]), being: first, the summary dismissal of the applicant’s application under Pt VII of the Act; secondly, a harmful proceedings order to restrain him from bringing any fresh proceedings; and thirdly, the variation of the May 2020 orders in the manner she proposed.
The primary judge heard the respondent’s application in June 2024, at which time the respondent was legally represented but the applicant was not. Judgment was reserved and delivered on 30 August 2024. Relevantly, the primary judge:
(a)summarily dismissed the applicant’s parenting application filed in May 2023, pursuant to s 102QAB of the Act (Order 1);
(b)restrained the applicant from bringing further proceedings against the mother under the Act, pursuant to s 102QAC of the Act (Order 2);
(c)discharged the former orders made in May 2020 (Order 3);
(d)made fresh parenting orders which provided for:
(i)the respondent to have sole decision-making authority for the child (Order 4);
(ii)the child to live with the respondent (Order 5);
(iii)the child not to spend any time with the father before her 14th birthday, after which time she can decide herself (Order 6); and
(iv)the regulation of the parties’ conduct (Orders 7–10); and
(e)otherwise dismissed all other outstanding applications (Order 11).
As can be seen, the primary judge granted the respondent’s application under Pt XIB of the Act to stymy the applicant and finally determined the proceedings under Pt VII of the Act by making fresh parenting orders generally reflecting those for which the applicant applied.
If granted leave to appeal, by his draft Notice of Appeal, the applicant indicates his intention to appeal from all those orders on 91 separate grounds.
The law
Pt XIB of the Act was enacted by the Family Law Amendment Act 2023 (Cth) and became operative from 6 May 2024, the purpose of which was explained this way in the Explanatory Memorandum:
319.…The purpose of this measure is to protect the respondent and/or children who are the subject of proceedings from the harmful impact of frequency and unnecessary applications filed by an applicant. This measure aims to limit systems abuse, which is a form of family violence that is prevalent in the family law system.
320.This measure addresses a gap in the court’s powers to scrutinise the institution of further proceedings, cited in the case of Marsden & Winch (2013) 50 Fam LR 409. The ALRC Report found that the court’s existing vexatious proceedings and summary dismissal powers do not provide sufficient scope for courts to make appropriate orders in cases where one party oppresses the other by repetitive filing of applications and the serving of those applications on the other party.
The harmful proceedings order made here pursuant to s 102QAC(1) of the Act (Order 2) does not carve out any exception for appeals and so the injunction restraining further proceedings catches both original and appellate proceedings (Pencious & Searle (2017) FLC 93-805 at [77]–[88]). The applicant therefore needs leave under Pt XIB of the Act to bring an appeal from any of the orders made by the primary judge.
When prosecuting an application under s 102QAE(2) of the Act for leave to institute further proceedings and thereby override the effect of the harmful proceedings injunction, it is obligatory for the applicant to file a supporting affidavit containing certain evidence (s 102QAE(3)) and, absent substantial compliance with the requirements of s 102QAE(3) of the Act, the application may be dismissed (s 102QAF(1)).
The application must be dismissed if the proposed further proceedings, either within original or appellate jurisdiction, fall within the definition of “vexatious proceedings” (s 102QAF(2)) or if the applicant fails to satisfy the Court the further proceedings are not vexatious (s 102QAG(1)). The distinction between the counterparts of those two sub-sections (ss 102QF(2) and 102QG(4)) was previously explained by the Full Court (Darley (No 4) [2023] FedCFamC1A 158 at [13]–[22]).
For the purpose of ascertaining whether s 102QAF(2) or s 102QAG(1) apply to govern the outcome of the application, the term “vexatious proceedings” is defined as follows (s 102Q(1)):
“vexatious proceedings” includes:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
(Emphasis in original)
Sub-paragraph (c) of the definition makes clear that it is enough for the proposed proceeding to be characterised as vexatious if it is “without reasonable ground”.
For clarity then, the task at hand is quite different from the tasks undertaken by the primary judge. When making Order 1, the primary judge had to be satisfied the applicant had no reasonable prospect of prosecuting his parenting application (s 102QAB(2)). When making Order 2, his Honour had to be satisfied there were reasonable grounds to believe the respondent, the child, or both of them would likely suffer harm if the applicant brings fresh proceedings in the future (s 102QAC). In making Orders 3–11, his Honour had to be satisfied they were made in the child’s best interests (s 60CA and s 65AA). However, it only now needs to be determined whether the applicant’s intended appeal from those orders is “without reasonable ground”. If so, leave to appeal must be refused.
The evidence
The two affidavits filed by the applicant are effectively submissions to vindicate the merit of his intended appeal. It may be doubted such evidence substantially complies with the obligation caste by s 102QAE(3) of the Act. Nonetheless, since the application is being determined in the applicant’s absence, it will not be dismissed for any technical infraction but rather considered on a substantive basis. Attention may turn then to the ostensible merit of the proposed appeal to determine whether it lacks “reasonable ground”.
The judgments
The orders made by the primary judge effectively represent three separate judgments, being:
(a)Order 1 – the summary dismissal of the applicant’s application to vary the May 2020 orders on the premise that he had no reasonable prospect of prosecuting his application (s 102QAB(2));
(b)Order 2 – the applicant’s restraint from bringing any further proceedings under the Act on the premise that the respondent, the child, or both of them would suffer harm if he instituted more proceedings in the future (s 102QAC(1), the nature of which judgment was also summary rather than substantive; and
(c)Orders 3–11 – parenting orders determining the respondent’s application to vary the May 2020 orders (s 64B(2) and s 65D(2)), as set out within her Response filed in November 2023, though it is not explicitly clear from the reasons whether the nature of this judgment was summary or substantive.
Procedural fairness
Many of the intended grounds of appeal allege the applicant’s deprivation of procedural fairness in one way or another (Grounds 2, 4, 25, 26, 52, 57, 58, 59, 60, 61, 62, 64, 65, 66, 67, 68, 69, 75, 79, 80, 85, 86, 87 and 88).
In so far as the grounds can be conceived to properly engage the doctrine of procedural fairness, they essentially assert: the applicant was not given notice about, and so he was unaware that, the parties’ parenting dispute under Pt VII of the Act might be finally determined; and the parenting dispute should not have been finally determined without him having the chance to adduce more evidence and cross-examine witnesses.
The applicant was certainly on notice of the respondent’s application, as it was filed and served before it was heard in June 2024. The application made plain the respondent’s intention to seek orders against the applicant under Pt XIB of the Act, dismissing his application which started the proceedings in May 2023, and stopping him from bringing any more proceedings. The application also made plain the respondent’s intention to procure an immediate variation of the May 2020 orders, the grant of which part of her application would finalise the Pt VII dispute.
That the applicant may have focussed his attention on the first part of the respondent’s application rather than on the second part is neither the fault of the primary judge nor the respondent. The respondent’s application was being heard in its entirety and he was given the chance to be heard about it in its entirety, so the question arises as to whether his alleged surprise at the Pt VII dispute being determined contemporaneously was nonetheless a material deprivation of procedural fairness which warrants the proposed appeal being allowed and the dispute re-heard (Stead v State GIO (1986) 161 CLR 141 at 145).
The primary judge was satisfied the applicant had no reasonable prospect of defending the parenting application prosecuted by the respondent (at [70], [165], [167] and [178]), in which event the respondent’s parenting application could have been granted summarily (s 102QAB(1) of the Act; s 143(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). However, his Honour did not refer to either of those two statutory provisions and so it is difficult to discern whether that was intended. Alternatively, his Honour might have intended to determine the parenting dispute substantively, albeit in a truncated manner. The primary judge referred to some of the statutory provisions which afforded the power to do so (at [98]–[101] and [105]), but they were augmented by a panoply of others.
At an abstract level, the primary judge was enjoined to ensure the Pt VII dispute between the parties was resolved at a cost that was proportionate to the importance and complexity of the dispute (s 190(2)(e) of the FCFCA Act).
More specifically though, in determining the parties’ dispute under Pt VII of the Act, the primary judge was obliged to consider the impact which the conduct of the proceedings may have on the child (s 69ZN(3)), to actively control the proceedings (s 69ZN(4)), and to conduct the proceedings so as to safeguard the child and the respondent from exposure to family violence (s 69ZN(5)). Such powers could be wielded on the primary judge’s initiative (s 69ZP).
Pragmatically, the parenting dispute between the parties was confined to whether the child should spend time with the applicant as the May 2020 orders formerly provided or whether the child should not spend any time with him, as had been the situation for the last four years. The applicant offered no plausible reason for why his parental responsibility for the child, removed by the May 2020 orders, should be restored. His Honour concluded, as was plainly open, that the perpetuation of the parenting dispute was likely to be a disproportionately fraught forensic contest, given the relatively modest way in which the May 2020 orders might be varied, and also potentially harmful to both the child and the respondent.
The primary judge expressly referred to the obligation to decide which issues in the Pt VII dispute could be disposed of summarily (s 69ZQ(1)(a)), but his Honour was also importantly: obliged to deal with as many aspects of the parties’ dispute as was possible on a single occasion (s 69ZQ(1)(g)), permitted to refuse a party’s desire to adduce evidence “in relation to a particular matter” or of a “particular kind” (s 69ZX(2)(g) and s 69ZX(2)(h)), permitted to refuse a party’s desire to cross-examine particular witnesses (s 69ZX(2)(i)), and entitled to limit the number of witnesses called to give evidence (s 69ZX(2)(j); s 192(2)(c) of the FCFCA Act).
In the face of such express statutory power and the factual findings made by the primary judge adverse to the applicant’s interests, it would be exceedingly difficult for him to maintain in any appeal that it was a material deprivation of procedural fairness for him to have been denied the chance to adduce more evidence and to cross-examine witnesses. That is particularly so if the parenting dispute was determined summarily.
Once the Pt XIB orders were made against the applicant (which are not the subject of any claim of procedural unfairness), only the respondent’s Pt VII application then remained pending. In contesting her Pt VII application to vary the May 2020 orders, the applicant could not cross-examine her because of the embargo imposed by s 102NA of the Act (at [68]). Given the child had neither seen nor spoken to the applicant for four years and the child told the court child expert she did not want to rekindle her relationship with him, it is highly doubtful his proposed cross-examination of the court child expert could have yielded any useful favourable concession or that he could have adduced any extra useful evidence to obstruct the primary judge’s decision to accede to the respondent’s parenting application.
The primary judge said this about the inevitability of the outcome of the respondent’s pending application under Pt VII of the Act:
22.If [the respondent’s] application is successful and [the applicant’s] application is summarily dismissed and [the applicant] is prevented from bringing any future applications on the basis that they would occasion harm to both [the respondent] and [the child], [the respondent] seeks to discharge the orders made by [the previous judge] on 7 May 2020 on the basis that it is axiomatically necessary for a raft of orders to be made to cover the new paradigm created.
…
187.Given the summary dismissal of [the applicant’s] application, it follows that the orders sought by [the respondent], in respect of [the child], should be made, to regulate her care, which also reflect the earlier injunctive orders regarding lunch orders and the like.
(Emphasis added)
The “new paradigm” being referred to (at [22]) is the situation which developed from July 2020, with the child neither spending any time nor communicating with the applicant, which situation was affirmed by the interim orders made in December 2023.
The primary judge was conscious of the need for procedural fairness, but said this:
104.Although the court must be mindful of [the applicant’s] entitlement to have a procedurally fair hearing, this does not mean he has an untrammelled entitlement to examine any issue which is of interest to him or commence and pursue any application which occurs to him.
The “procedural unfairness” grounds lack reasonable prospects of success and are therefore vexatious within the meaning of s 102Q(1) of the Act.
The Pt XIB orders
Relatively few grounds (Grounds 53, 63, 76, 77 and 78) attack the Pt XIB orders. To the extent the grounds can be understood, they allege the applicant was not properly heard in opposition to the respondent’s application and, further, the findings of her being harmed by the ongoing proceedings were predictions which were not open in the absence of affirmative expert medical evidence.
The primary judge received affidavit evidence from the parties and a family report compiled by the court child expert. No witness was cross-examined, but that was unexceptional because the primary judge was determining the Pt XIB application summarily, as the Act envisages. His Honour understood the applicant wanted to contest some aspects of the evidence but found the ordinary forensic process would likely cause the mischief which Pt XIB of the Act was designed to avoid (at [143]). The very nature of a summary hearing is to undertake only a “practical assessment” of the suit’s prospects, absent the complete factual matrix and full argument (Spencer v The Commonwealth (2010) 241 CLR 118 at [25] and [47]; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [28]).
His Honour determined to summarily dismiss the applicant’s application and restrain him from bringing further proceedings (at [185]) because, essentially: the child was emotionally vulnerable and had not seen the applicant for four years (at [117]); the respondent was diagnosed with a psychological disorder which was aggravated by having to deal with the applicant and the litigation he instigated, thereby compromising her parenting capacity (at [140]–[142], [150], [180], [181] and [184]); the applicant was a “serial and serious litigator” who has unsuccessfully mounted an “extraordinary” litigious campaign against all manner of individuals (at [144]–[145], [149] and [151]); the applicant’s motivation was probably malign (at [146], [152] and [175]); it was unlikely the applicant’s parenting proposal would find favour (at [165] and [178]); and continuation of the litigation would likely be detrimental to the child’s emotional stability (at [173]–[174] and [180]).
As to the specific evidentiary premise for the findings made about the respondent being harmed by the ongoing proceedings, she gave evidence the symptoms of her diagnosed PTSD had moderated when she was relieved of interaction with the applicant but had returned since he instituted these proceedings (at [60] and [140]), for which symptoms she receives monthly treatment (at [162]), though she did not adduce any current medical reports to verify her condition (at [66] and [143]). The primary judge inferred from the respondent’s evidence that the continuation of the proceedings would likely cause her “major mental stress” and have a “detrimental impact” upon her capacity to care for the child (at [141], [150], [161], [180], [181] and [184]). Such inferences were open on the available evidence without the need for corroborative expert opinion evidence. Drawing an inference is an exercise of ordinary human reasoning in the light of experience and is unaffected by any rule of law (G v H (1994) 181 CLR 387 at 390).
These grounds lack reasonable prospects of success and are therefore vexatious within the meaning of s 102Q(1) of the Act.
The Pt VII orders
The remaining grounds all attack the orders made under Pt VII of the Act which vary the orders formerly made in May 2020. They will be addressed in categories rather than individually.
Some grounds allege errors of law (Grounds 6, 24 and 27), essentially because the primary judge made the new parenting orders without discretely addressing the provisions of s 60CC of the Act and by failing to make “workable” orders.
The orders are certainly workable, though they do not work in the way the applicant would like. His Honour did refer to s 60CC of the Act (at [109], [118], [158], [160] and [166]) and addressed the factors which were dispositive: keeping the child and the respondent safe from family violence taking the form of coercive and controlling conduct by the applicant (at [111], [117]–[118], [140]–[143], [151], [165] and [183]); the child’s view being she did not wish to spend time with the father, stated to both the mother and the court child expert (at [7], [40], [73], [112]–[113], [168]–[169], [171]–[172] and [176]); the child had not seen or spoken to the applicant for four years (at [18], [66], [117] and [155]); the applicant conceded his relationship with the child had atrophied (at [82]); and the benefit the child might derive from maintaining relationships with both parents, but only if it was safe for her to do so (at [159] and [166]).
Two grounds (Grounds 3 and 8) allege the primary judge erred at law by varying the May 2020 orders without first finding there was a material change of circumstances in the interregnum, as required by the principle enunciated in Rice v Asplund (1979) FLC 90-725 or its new statutory embodiment in s 65DAAA of the Act. The complaint is misconceived. Both parties applied for variation of the May 2020 orders because there had undoubtedly been material changes in circumstances, though they proposed the changes should be addressed in different ways. Because the child had not seen or spoken to the applicant for four years and neither she nor the respondent wanted to revert to compliance with the May 2020 orders, the respondent wanted new orders to reflect the current reality. Because the applicant was released from custody, he wanted the child to resume spending time with him, but he wanted it to occur even more liberally and frequently than the May 2020 orders permitted and, additionally, he wanted to regain his share of parental responsibility for the child which he lost under the May 2020 orders. Evidently, the applicant’s application stood no reasonable chance of success, whereas the respondent’s application verged on being inevitable.
Some grounds (Grounds 21, 35, 44 and 46) allege errors of fact, but the alleged findings were either not made at all, not made in the form alleged, or not genuinely material to the outcome. The grounds specifically complain about: the mother’s evidence of the child’s adverse reaction to spending time with the father in the period between May and July 2020; the respondent’s likely unwillingness to support the child’s submission to therapy to help her cope with re-introduction to the applicant; the absence of any satisfactorily secure venue for the child to be exchanged; and the unviability of supervised contact between the child and the applicant.
Some grounds (Grounds 1, 5, 7, 23, 28, 37, 39 and 41) complain of an insufficiency of reasons, but the reasons were adequate to indicate why the May 2020 orders were varied in the manner they were and that is enough (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Bennett v Bennett (1991) FLC 92-191).
Both parties realised the May 2020 orders had to be varied in one way or another, as both made variation applications. The primary judge conceptualised the balance to be struck between the prompt or protracted determination of how the May 2020 orders should be varied, saying this:
67.In this context, the court must consider essentially what useful purpose will be served by allowing the matter to proceed further and for [the respondent] to be potentially cross-examined about these controversies and, of its price, both in financial terms (both to [the respondent] and the community) and in any emotional cost to be borne by both the [respondent] and [the child]. In this context, in my view the Family Report is likely to be central.
…
80.This is a case concerned with so-called systems abuse, which in general terms can include the manipulation or invocation of legal systems by the perpetrators of family violence to exert control over, threaten, harass and undermine former partners. Necessarily, for obvious reasons, exposure to such systems abuse is not helpful to children and their primary providers of care. The court needs to be vigilant to prevent its processes being abused in this way.
81.In my view, this is the central issue arising in the case. Is the evidence thus far available to the court, of sufficient cogency that the court should not countenance the further exposure of [the respondent] and indeed [the child] to proceedings which are likely to constitute, by their inherent nature, some type of systems abuse, for both mother and child, in the sense they would represent an on-going form of coercive and controlling family violence.
…
104.Although the court must be mindful of [the applicant’s] entitlement to have a procedurally fair hearing, this does not mean he has an untrammelled entitlement to examine any issue which is of interest to him or commence and pursue any application which occurs to him.
…
155.Modest orders were made by [the former judge], on 7 May 2020, for [the applicant] to spend time with [the child], for six hours, on alternate Sundays. This modest time reflected [the former judge’s] finding that [the applicant] had behaved in a coercive and controlling manner towards [the respondent]. In addition, measures were put in place to manage the exchange of [the child] been the parties, which soon broke down. It is now over four years since the child interacted directly with [the applicant].
His Honour decided a prompt determination was best. The reasons for the ultimate decision were then made clear. The child did not want to spend any time with the applicant (at [73] and [176]), which the primary judge regarded as significant (at [113]). For his part, the applicant admitted his relationship with the child was “not currently viable”, that “family reunification therapy” would be needed, and perhaps an initial period of supervised contact between them would also be necessary (at [6], [82], [87] and [88]). Such evidence did not augur well for his rebuttal of the respondent’s application for varied parenting orders. The court child expert recommended against any re-introduction of the child to the applicant if the primary judge found he was still engaged in “coercive and controlling behaviour” towards the respondent (at [76]–[79]), which finding his Honour made (at [146], [151] and [152]), just as was found in the former proceedings finalised in May 2020 (at [155]). The primary judge considered the applicant would have “very great difficulties” advancing his case against the respondent (at [70], [165], [167] and [178]).
The primary judge was still alive to the applicant’s contentions: he was a loving and concerned parent (at [6]); the respondent had deliberately alienated the child from him (at [6], [16] and [84]); the respondent’s residential care of the child was less than satisfactory (at [16]); the child should not be deprived of a meaningful relationship with him (at [85]); the child’s relationship with him might be salvageable (at [87]); the respondent had breached the May 2020 orders (at [85]); the court child expert did not observe the child with him (at [87] and [170]); the court child expert’s views had not been tested and should be given little weight (at [114]); and an Independent Children’s Lawyer should be appointed to represent the child’s interests (at [115]). His answer to the respondent’s case was therefore properly conceptualised and considered.
Some grounds (Grounds 30, 31, 33, 45, 47, 48, 49, 50, 51 and 70) complain that the result – the effective elimination of the applicant from the child’s life – was manifestly unreasonable or unjust. The new parenting orders were indeed a strong response to the evidence, but not in a way which could be said to be manifestly unreasonable or unjust. The result enjoyed the support of the court child expert, was consistent with the child’s stated views, and amounted to the retention of the status quo which had developed over the preceding four years.
Some grounds (Grounds 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 29, 32, 34, 36, 38, 40, 54, 55, 56, 84 and 91) complain of insufficient weight being attributed to various pieces of evidence but, given the improbability of the result being manifestly unreasonable or unjust, arguments about the weight attributed to the evidence are then irrelevant (Hedlund & Hedlund (2021) FLC 94-065 at [12] and [36]–[37]).
Some grounds (Grounds 9, 71, 72, 73, 81, 89 and 90) complain of discretionary errors by the primary judge failing to consider certain aspects of the evidence, however the salient considerations stipulated by s 60CC of the Act were considered. The respondent’s failure to mediate was irrelevant. The respondent’s legal representation was irrelevant. The industry standards for family reports were irrelevant. Conversely, the respondent’s refusal to revert to compliance with the May 2020 orders was relevant, but her refusal was not belligerent. After four years of the parties’ mutual disregard of the orders, the respondent believed they no longer suited the child’s needs.
Without intending disrespect, the remaining grounds (Grounds 10, 22, 42, 74, 82 and 83) are incomprehensible.
These grounds lack reasonable prospects of success and are therefore vexatious within the meaning of s 102Q(1) of the Act.
Disposition
The application for leave to appeal is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 14 October 2024
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